                               Illinois Official Reports

                                       Appellate Court



                          People v. Littleton, 2014 IL App (1st) 121950



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                   ERNEST LITTLETON, Defendant-Appellant.



District & No.            First District, Fourth Division
                          Docket No. 1-12-1950



Filed                     June 26, 2014
Rehearing denied          August 12, 2014

Held                       Defendant’s conviction and sentence for robbery were upheld over his
(Note: This syllabus contentions that other-crimes evidence was improperly admitted, that
constitutes no part of the the admission of other testimony violated the confrontation clause and
opinion of the court but the hearsay rule, that defense counsel was ineffective in failing to
has been prepared by the demand a speedy trial and failing to seek the suppression of
Reporter of Decisions eyewitness identifications and that defendant’s guilt was not
for the convenience of established beyond a reasonable doubt, since the trial court did not
the reader.)               abuse its discretion in admitting evidence of other crimes establishing
                           defendant’s modus operandi, the improper admission of hearsay
                           testimony of two retired police officers concerning defendant’s prior
                           offenses was harmless in view of the overwhelming evidence of
                           defendant’s guilt, there was no indication the outcome would have
                           been different if defense counsel had demanded a speedy trial or
                           moved to suppress the identifications, and the identification testimony
                           of an eyewitness was sufficient to establish defendant’s guilt.



Decision Under            Appeal from the Circuit Court of Cook County, No. 09-CR-2972; the
Review                    Hon. William H. Hooks, Judge, presiding.


Judgment                  Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Rachel M. Kindstrand, all
     Appeal                   of State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Mary P. Needham, and Jocelyn M. Schieve, Assistant State’s
                              Attorneys, of counsel), for the People.




     Panel                    JUSTICE EPSTEIN delivered the judgment of the court, with opinion.
                              Presiding Justice Howse and Justice Fitzgerald Smith concurred in the
                              judgment and opinion.




                                                OPINION

¶1          Following a bench trial, defendant Ernest Littleton was found guilty of the robbery of
       Audrey Schenck and sentenced to 25 years’ imprisonment. Defendant raises several issues on
       appeal: (1) the trial court erred in admitting evidence of other crimes; (2) the trial court erred
       in admitting testimony that violated the rule against hearsay and the confrontation clause; (3)
       trial counsel was ineffective in failing to make a speedy trial demand and failing to move to
       suppress eyewitness identifications; and (4) the State failed to prove him guilty beyond a
       reasonable doubt. We conclude that evidence of defendant’s pattern of robbing elderly
       women on the southwest side of Chicago was properly admitted to prove his modus
       operandi. While inadmissible hearsay was introduced at defendant’s trial, we find that the
       admission of that testimony was harmless. We further find that defendant’s attorney did not
       render ineffective assistance in failing to make fruitless motions and that the State presented
       sufficient evidence to prove defendant guilty beyond a reasonable doubt. We affirm
       defendant’s conviction.

¶2                                          BACKGROUND
¶3         Defendant was indicted in the November 17, 2008, robbery of Dorothy Jokubaitis and the
       December 4, 2008, robbery of Audrey Schenck. He was first tried in the Jokubaitis robbery
       and was acquitted. Defendant was then tried in the Schenck robbery. Schenck, however, had
       died before trial. The trial court admitted Schenck’s testimony from the Jokubaitis trial as
       evidence in the Schenck trial.

¶4                                            Pretrial
¶5         The State moved to admit other-crimes evidence, specifically, evidence of Jokubaitis’
       robbery, as well as evidence of defendant’s 1994 robberies of Rosella Defenbaugh and
       Lucille Zaye and 1997 robberies of Ana Mireles and Mary Moore. The State argued that the
       evidence would show defendant’s modus operandi, identity, and a common scheme or


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       design. Defendant responded that the evidence was unduly prejudicial, and not probative of
       the State’s proffered reasons for admitting the evidence. The trial court granted the State’s
       motion, finding that the evidence would not be unfairly prejudicial and would show “the
       absence of innocence of the state of mind, the presence of criminal intent, modus operandi,
       intent, identity, and *** a common scheme and design.”
¶6         The State also filed a motion to admit prior testimony by four deceased witnesses
       pursuant to section 115-10.4 of the Code of Criminal Procedure of 1963 (725 ILCS
       5/115-10.4 (West 2010)). In particular, the State sought to introduce transcripts of Schenck’s
       testimony in the Jokubaitis case, as well as Defenbaugh’s, Zaye’s, and Moore’s preliminary
       hearing testimony in their respective cases. The trial court granted the State’s motion with
       respect to Schenck’s testimony, but denied it with respect to the transcripts of Defenbaugh’s,
       Zaye’s, and Moore’s testimony.

¶7                            Trial–Robbery and Theft of Audrey Schenck
¶8         The State presented a certified copy of Schenck’s death certificate before reading her
       testimony from the Jokubaitis trial into the record. Schenck testified that, on the morning of
       December 4, 2008, she drove to a Jewel grocery store at 6107 South Archer Avenue in
       Chicago, Illinois. She returned to her apartment building at 5839 South Harlem Avenue,
       noticing that the parking gate was broken and would not close. Schenck parked her car and
       was retrieving her groceries from her backseat when a man grabbed her throat and snatched
       her purse from her left shoulder. The man pulled her out of the car and pushed her toward the
       ground before fleeing. Schenck recalled that the man wore a dark jacket with a hood and had
       a dark complexion, but she remembered no other details.
¶9         Dawn Evans, an employee in Schenck’s apartment complex, testified that she saw
       Schenck staggering and heard her say, “[H]e’s got my purse.” She followed the man until he
       went around a fence and into an adjacent parking lot. The robber held up the purse and said,
       “[Y]ou want this,” to which Evans said, “Yes.” The robber then said, “[N]a,” and fled in a
       white minivan. Evans testified that a photograph of the rear of defendant’s car resembled the
       car she saw the robber enter that day. She provided police with a description of the offender,
       including that he wore a brown parka. Evans identified defendant as the robber in court.
¶ 10       Officer Foley testified that, on January 4, 2009, he responded to a call regarding a
       suspicious black male driving a white sport utility vehicle (SUV) near 58th Street and Neva
       Avenue. Foley stopped the SUV and recorded defendant’s name, address, date of birth, and
       license number. He further testified that he was aware of a pattern of robberies involving a
       black male in his thirties or forties, and defendant “strongly resembled” the suspect. Foley
       relayed this information to his partner, Officer Prendkowski.
¶ 11       Officer Kevin Prendkowski testified that, after speaking with Officer Foley, he spoke
       with Detective Gary Wisniewski about arranging a photo array in relation to the pattern of
       robberies. He later learned from Wisniewski that a positive photo array identification had
       been made. On January 18, 2009, Prendkowski saw defendant driving a white Jeep in a
       grocery store parking lot at 63rd Street and Narragansett Avenue. Prendkowski followed
       defendant, who, in turn, was following a car driven by an elderly woman. Defendant lost
       track of the woman and pounded his hands on the steering wheel. Defendant then returned to
       the grocery store parking lot, where he drove in circles. Other officers arrived and arrested


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       defendant. When defendant exited his vehicle, he was wearing a brown puffy coat with white
       fur around the hood.
¶ 12       Detective Wisniewski testified that, on January 13, 2009, he showed a photo array to
       Dawn Evans, who identified defendant as Schenck’s robber. After defendant’s arrest on
       January 18, 2009, Evans viewed a lineup and identified defendant as the robber.

¶ 13                       Other-Crimes Evidence–2008 Robbery of Jokubaitis
¶ 14       The State presented Dorothy Jokubaitis as a witness over defendant’s objection. She
       testified that, on November 17, 2008, she went to the Jewel at 6107 South Archer Avenue.
       As she drove home, she noticed a van following her. After she retrieved the groceries from
       the trunk and backseat, she turned and saw a man in her garage standing only a foot away.
       The man said, “Give me your purse.” A struggle ensued. Jokubaitis yelled for help, and the
       man punched her in the nose. She fell to the ground, and he fled with her purse and groceries.
       She was 68 years old at the time of the offense. She described the man to police as a black
       male, 35 to 40 years old, 5 feet 11 inches tall, wearing a cream-colored hat and brown jacket.
       She subsequently identified defendant in a lineup. She identified the defendant as the robber
       in court.

¶ 15                 Other-Crimes Evidence–1997 Robberies of Moore and Mireles
¶ 16       Officer Guy Habiak testified regarding two 1997 robberies to which defendant pled
       guilty. He stated that, on February 2, 1997, he was assigned to the robberies of Mary Moore
       and Ana Mireles. Habiak spoke to Officers Sneathan and Deheer that day, who told him that,
       after responding to a robbery at 5132 South Kenneth Avenue in Chicago, Illinois, and
       receiving a description of a male black in a grey coat with a large black purse, they found and
       arrested defendant. Defendant had a purse, $44, a grey, hooded jacket, and a $7,500
       “advertisement check” made payable to Ana Mireles in his possession.
¶ 17       Habiak spoke to Moore, who said that a black male wearing a grey jacket grabbed her on
       the way home from a bakery, knocked her down, and took her purse. Moore could not see the
       offender’s face. Moore’s niece, Jennifer Krikvana, told Habiak that she observed the robbery
       through her front window. Krikvana later identified defendant as the robber at a police
       station.
¶ 18       Habiak also spoke with 79-year-old Ana Mireles, who said that, as she was returning
       from the grocery store, a man knocked her down from behind and took her purse, which
       contained a $7,500 advertisement check. Mireles never saw the man’s face.
¶ 19       Later that day, Habiak spoke with defendant, who, after being read his Miranda rights,
       admitted to robbing a woman of her purse at 5132 South Kenneth Avenue. Defendant
       admitted that the $7,500 check was from a robbery he had committed several days earlier, in
       which he knocked a woman down from behind and took her purse.

¶ 20                Other-Crimes Evidence–1994 Robberies of Defenbaugh and Zaye
¶ 21       Officer Howard Hatton testified regarding two 1994 robberies to which defendant pled
       guilty. Hatton spoke with Officer Contrarez, who stated that he curbed a light blue
       Oldsmobile that matched descriptions of a robber’s car. Defendant stopped the car and fled
       on foot, but was eventually apprehended and found to have three sets of car keys.

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¶ 22        Hatton spoke with 80-year-old Rosella Defenbaugh, who told him that, on August 10,
       1994, she returned to her home from a trip to Edmar Foods, a grocery store, and parked in
       her garage. A black male exited a light blue car, entered her garage, knocked her to the
       ground, took her purse from inside her car, and fled. She subsequently identified defendant in
       a lineup.
¶ 23        Hatton also spoke with 77-year-old Lucille Zaye, who told him that, on August 12, 1994,
       she drove to the Edmar Foods parking lot, where a man knocked her to the ground, took her
       purse, and fled. She did not see the offender’s face. Priscilla Pulido told Hatton that she
       witnessed the offense. She saw a black male in a light blue car pull into an alley behind the
       store, push Zaye to the ground, take her purse, and flee in his car. Pulido identified defendant
       in a photo array and lineup. Upon his arrest, defendant possessed keys belonging to both
       Zaye and Defenbaugh.

¶ 24                                       Defense Evidence
¶ 25       Berton Downing testified that, on December 4, 2008, defendant worked at the barbershop
       Downing owned. Downing recalled that defendant took a lunch break sometime between
       11 a.m. and 1 p.m. that day. A receipt showed that defendant worked that day, but
       defendant’s name did not appear on the receipt until 5:37 p.m.

¶ 26                                    Verdict and Sentence
¶ 27      The trial court found defendant guilty of theft and robbery of a victim over the age of 60.
       The court sentenced him to 25 years’ imprisonment.

¶ 28                                         ANALYSIS
¶ 29       Defendant raises other-crimes evidence, hearsay, confrontation clause, ineffective
       assistance of counsel, and reasonable doubt claims on appeal. We first address the State’s
       claim that defendant improperly included the Jokubaitis transcripts in the record on appeal.

¶ 30                                        The Record on Appeal
¶ 31       The State argues that the transcripts from the Jokubaitis trial were not before the trial
       court and are irrelevant to this appeal. The State is incorrect. The trial court stated that the
       Jokubaitis transcripts should be included in the record. After the State presented transcripts of
       Schenck’s testimony in that case, the court responded, that “this matter will be taken up
       probably eventually on appeal.” The court therefore asked the State to “refile it with the
       complete transcript, not just the relevant portions.” The State responded, “You want the
       entire transcript, the trial transcript?” The court responded, “Yes, because when these things
       get prepared for appeal I would prefer that if they do go on appeal I would prefer [sic] that
       the whole transcript is provided.” Thus, the trial court intended for the Jokubaitis transcripts
       to be included.
¶ 32       Additionally, given that the State used Jokubaitis’ testimony as its primary other-crimes
       evidence, we believe that the inclusion of the transcripts from defendant’s first trial is proper.
       See Ill. S. Ct. R. 323(a) (eff. Dec. 13, 2005) (“A report of proceedings may include evidence,
       oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his
       decision, and any other proceedings that the party submitting it desires to have incorporated

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       in the record on appeal. The report of proceedings shall include all the evidence pertinent to
       the issues on appeal.”). We now turn to defendant’s contentions of error.


¶ 33                                      Other-Crimes Evidence
¶ 34       Defendant argues that the trial court erred in admitting other-crimes evidence, including
       testimony regarding the robbery of Jokubaitis, the 1994 and 1997 robberies, and an
       uncharged act that occurred immediately before his arrest. There was not, defendant argues,
       such a high degree of identity between Schenck’s robbery and the others to support
       admission of this evidence as modus operandi. We find that there was a high degree of
       identity between the instant offense and the other crimes–specifically, a distinctive
       combination of location, victim, timing, method, and flight–and hold that the trial court did
       not abuse its discretion in admitting evidence of other crimes.
¶ 35       Other-crimes evidence is inadmissible if it is used to show a defendant’s propensity to
       commit crimes. People v. Heard, 187 Ill. 2d 36, 58 (1999). It may be admitted for other
       purposes, such as proving a defendant’s modus operandi, intent, motive, or absence of
       mistake. People v. Pikes, 2013 IL 115171, ¶ 11. Even where used for a permissible purpose,
       other-crimes evidence should not be admitted if its prejudicial effect outweighs its probative
       value. Id. The danger of other-crimes evidence is that, because of its persuasiveness, it may
       convince a jury to convict the defendant simply because he is a bad person. People v.
       Thingvold, 145 Ill. 2d 441, 452 (1991). “In a bench trial, this fear is assuaged; it is presumed
       that the trial court considered the other-crimes evidence only for the limited purpose for
       which it was introduced.” People v. Nash, 2013 IL App (1st) 113366, ¶ 24.
¶ 36       In most cases, general areas of similarity will suffice for other-crimes evidence to be
       admitted for a purpose other than propensity. People v. Wilson, 214 Ill. 2d 127, 141 (2005).
       Where the prosecution offers other-crimes evidence to establish modus operandi, however, a
       higher degree of similarity between the facts of the charged offense and other offenses is
       required. Id. at 140. Specifically, to establish modus operandi, the State must show a “ ‘high
       degree of identity’ ” between the facts of the crime charged and the other offense. People v.
       Cruz, 162 Ill. 2d 314, 349 (1994) (quoting People v. Illgen, 145 Ill. 2d 353, 373 (1991)). The
       offenses “must share such distinctive common features as to earmark both acts as the
       handiwork of the same person.” Illgen, 145 Ill. 2d at 373. Modus operandi denotes a pattern
       of criminality “so distinctive that separate crimes are recognized as the handiwork of the
       same wrongdoer.” Cruz, 162 Ill. 2d at 349. Even where other-crimes evidence is offered to
       prove modus operandi, however, some dissimilarity between the crimes will always exist.
       People v. Taylor, 101 Ill. 2d 508, 521 (1984).
¶ 37       The admissibility of evidence rests within the trial court’s discretion. People v. Becker,
       239 Ill. 2d 215, 234 (2010). The trial court’s decision will not be disturbed absent an abuse of
       discretion. Id.
¶ 38       Here, the trial court set forth its reasoning for admitting other-crimes evidence in a
       written order:
                   “This Court *** considered proof of other-crimes evidence. *** This evidence
               was considered by this court strictly for the purpose of modus operandi and not for
               any other purpose. Specifically, this court noted that the defendant had previously
               targeted victims who: (1) were elderly women; (2) lived on the southwest side of

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                Chicago in a fairly narrow geographical area; (3) had recently left a grocery store or
                bakery; (4) were traveling in late morning to early afternoon; and, (5) had their purses
                forcefully taken from them. This court also noted that defendant had worn a brown
                Parka in the two most recent alleged robberies. Additionally, this court made a
                finding that the probative value of the admission of the other-crimes evidence
                outweighed any prejudice.”
¶ 39        The trial court did not abuse its discretion in holding that other-crimes evidence could be
       admitted to establish modus operandi. Schenck, Jokubaitis, Moore, Mireles, Defenbaugh, and
       Zaye were all women, traveling alone, and in their late sixties, seventies, or early eighties. In
       each case, defendant’s target traveled to a grocery store on Chicago’s southwest side or
       nearby suburbs, often Edmar Foods or the Jewel located at 6107 South Archer Avenue. In
       each case, defendant approached the woman at her home, often while she unloaded groceries
       from her car. In each case, defendant knocked the woman to the ground, took her purse, and
       fled.
¶ 40        To be sure, each offense varied slightly from the others. Some of the victims returned
       home on foot, others in a car. One of the victims was returning from a bakery, not a
       full-service grocery store. In some cases defendant fled in a light blue car, in others,
       apparently on foot. Although there was evidence that defendant wore a brown coat in the
       more recent robberies, such evidence did not exist for the older robberies. Some dissimilarity
       will always exist, however. Taylor, 101 Ill. 2d at 521. Here, a pattern is unmistakable:
       defendant found elderly women traveling alone from one of a few geographically proximate
       grocery stores, knocked them down, took their purses, and fled.
¶ 41        Defendant compares this case to People v. Howard, 303 Ill. App. 3d 726 (1999). There,
       the State introduced evidence of another robbery. Id. at 727-28. In both cases, an offender
       approached a white male college professor from behind near the University of
       Illinois–Chicago campus at Van Buren Street. Id. at 731. A divided appellate court held that
       the trial court had erred in admitting this evidence, noting that that there was no evidence that
       the offender knew both men were college professors and there was nothing unique about a
       robber approaching a person from behind. Id. Further, Van Buren is a busy thoroughfare. Id.
       The court concluded that “[t]his is not a unique earmark but rather describes the prototypical
       armed robbery.” Id.
¶ 42        The State contends that this case is similar to People v. Jones, 328 Ill. App. 3d 233
       (2002). There, the trial court allowed the state to present evidence regarding two other
       robberies. Id. at 235. The defendant robbed all three people within a four-hour window in the
       same geographical area. Id. at 240. In two of the cases, the defendant covered his gun with a
       “ ‘dirty old yellow’ kitchen towel.” Id. at 241. Each person identified the defendant in a
       lineup. Id. at 240. In Jones, we held that the cases presented a sufficiently high degree of
       similarity to admit other-crimes evidence under the modus operandi exception. Id. at 241. We
       noted that, “[w]hile differences in the uncharged other crimes and the charged offenses
       exist[,] *** the similarities of these crimes, when viewed together, are sufficiently distinctive
       to support the inference the defendant was the robber in each case.” Id.
¶ 43        We agree with the State that this case is more like Jones than Howard. Here, unlike in
       Howard, the State presented evidence of not one additional case, but five. In each case,
       defendant found a 68- to 82-year-old woman traveling alone to one of only a few southwest
       side grocery stores, approached the woman on her way home, knocked her down, took her

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       purse, and fled. Together, these cases form a distinct pattern of criminality. See People v.
       Hansen, 313 Ill. App. 3d 491, 506 (2000) (“In the absence of any one particular distinctive
       feature *** Illinois courts have found that a sufficient number of common features can form
       a distinctive combination sufficient to establish the existence of a modus operandi.”).
       Defendant’s choice of location, victim, and timing establishes a high degree of identity
       between the offenses, indicating that they were the handiwork of the same offender. In each
       case, defendant immobilized the victim and quickly fled. As we did in Jones, we recognize
       that the differences among the crimes exist. However, “these crimes, when viewed together,
       are sufficiently distinctive to support the inference the defendant was the robber in each
       case,” and thus we cannot say that the trial court abused its discretion in admitting evidence
       of them. Jones, 328 Ill. App. 3d at 241.
¶ 44        Defendant also argues that the other-crimes evidence should have been excluded, because
       its prejudicial effect outweighed its probative value. Specifically, this evidence “unfairly
       bolstered Schenck’s credibility where she could not identify the robber and was not subject to
       further examination because she was deceased.”1 As defendant acknowledges, identity was
       the primary issue at his trial. Modus operandi acts as circumstantial evidence of identity on
       the theory that crimes committed in a similar manner indicate that they were committed by
       the same offender. People v. Quintero, 394 Ill. App. 3d 716, 726-27 (2009); see also People
       v. Tipton, 207 Ill. App. 3d 688, 696 (1990) (modus operandi may be probative of the
       offender’s identity); People v. Howard, 303 Ill. App. 3d 726, 730 (1999) (“The use of modus
       operandi evidence is especially proper when the defendant’s identity is a central issue in the
       case.”). The other-crimes evidence here did not unfairly bolster Evans’ testimony. It was
       proper circumstantial evidence of defendant’s identity as the offender that strongly
       corroborated Evans’ identification. The evidence’s probative value outweighed its prejudicial
       effect.
¶ 45        Defendant argues that, even if the evidence was relevant to prove modus operandi, the
       trial court failed to properly limit the scope of the other-crimes evidence. In particular,
       defendant claims that the State was allowed to elicit great detail about defendant’s 1994 and
       1997 arrests, including an attempt to flee custody and testimony that he kicked an officer. We
       recognize that a trial court must limit other-crimes evidence to the purpose for which it is
       admitted. People v. Bennett, 281 Ill. App. 3d 814, 827 (1996). Although some of these details
       were extraneous, they were relatively brief in comparison with the other testimony
       concerning the defendant’s prior robberies. We must presume that the trial judge, acting as
       the trier of fact in this case, did not consider this irrelevant testimony. People v. Robinson,
       368 Ill. App. 3d 963, 976 (2006). The trial judge’s written findings, wherein he expressly
       stated that he considered the evidence solely for modus operandi purposes, also show that
       these extraneous details did not factor into its decision.
¶ 46        Defendant further contends that the trial court erred in allowing Officer Prendkowski to
       testify regarding defendant’s pre-arrest behavior, as it was irrelevant and not admissible to
       show the circumstances of defendant’s arrest or to show modus operandi. Prendkowski saw
       defendant follow an elderly woman from a grocery store parking lot before he lost sight of

           1
             It is difficult to appreciate how this evidence could impact Schenck’s credibility where the issue at
       trial was the identity of the offender. Schenck never identified defendant as the robber. The evidence
       could, however, enhance the credibility of Evans, who identified defendant.

                                                       -8-
       her and pounded the steering wheel with his hands. Prendkowski’s description was relevant
       to the circumstances of defendant’s arrest. See, e.g., People v. McKibbins, 96 Ill. 2d 176, 183
       (1983) (description of robbery in progress was necessary to describe circumstances of
       defendant’s arrest); see also People v. Aguilar, 396 Ill. App. 3d 43, 55 (2009) (“evidence of
       other crimes is admissible *** to show the circumstances surrounding defendant’s arrest”).
       Nor did the testimony’s prejudicial effect outweigh its probative value. Evidence of
       defendant’s other acts was therefore admissible.

¶ 47                                              Hearsay
¶ 48       Defendant argues that “[t]he testimony elicited from the retired police officers [Habiak
       and Hatton] should have been excluded as inadmissible hearsay that violated [his] right of
       confrontation.” The confrontation clause and the rule against hearsay, while related, are not
       identical and should not be conflated. See Crawford v. Washington, 541 U.S. 36, 68 (2004);
       Lilly v. Virginia, 527 U.S. 116, 140-43 (1999) (Breyer, J., concurring). The confrontation
       clause provides a federal constitutional guarantee concerned only with the admission of
       testimonial hearsay, whereas hearsay rules are evidentiary rules developed in each state.
       Crawford, 541 U.S. at 68. We first address defendant’s hearsay claim.
¶ 49       Evidentiary rulings are within the sound discretion of the trial court and will not be
       reversed absent an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89 (2001). Illinois
       courts apply an abuse-of-discretion standard when reviewing a trial court’s decision
       regarding the admission of hearsay. E.g., id.; People v. West, 158 Ill. 2d 155, 164-65 (1994).
       An abuse of discretion will be found only where the trial court’s ruling is arbitrary, fanciful,
       or unreasonable, or where no reasonable person would take the view adopted by the trial
       court. People v. Patrick, 233 Ill. 2d 62, 68 (2009).
¶ 50       The testimony at issue related to the robberies defendant pled guilty to in 1994 and 1997.
       As discussed above, the State used this testimony to prove defendant’s modus operandi. The
       State introduced evidence of the 1997 robberies through Officer Habiak. Habiak testified to
       the statements he received from five people: Moore, Krikvana, Mireles, Officer Sneathan,
       and Officer Deheer. Habiak testified that Moore told him that a black man in a gray jacket
       knocked her down and took her purse, and that Krikvana identified defendant as that man.
       Habiak testified that Mireles told him that a man knocked her down and took her purse,
       which contained a $7,500 check. Habiak testified that Officers Sneathan and Deheer told him
       that they arrested defendant in response to Moore’s robbery complaint and that he was in
       possession of a purse, $44, and a $7,500 check made out to Mireles. Habiak did not witness
       any of these events.
¶ 51       The State introduced evidence of the 1994 robberies through Officer Hatton. Hatton
       testified to the statements he received from four people: Defenbaugh, Zaye, Pulido, and
       Officer Contrarez. Hatton testified that Defenbaugh told him that defendant entered her
       garage, knocked her down, and took her purse. Hatton testified that Zaye told him that a man
       knocked her down in the parking lot of a grocery store and took her purse, and that Pulido
       told him that defendant was the man who robbed Zaye. Hatton testified that Officer
       Contrarez stopped defendant driving a car matching a description of the robber’s car and that
       defendant fled. Hatton did not witness these events.
¶ 52       Defendant argues that Habiak’s and Hatton’s testimony recounting statements from these
       nine people constituted inadmissible hearsay. Hearsay is an out-of-court statement offered in

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       court to prove the truth of the matter asserted in the statement. Caffey, 205 Ill. 2d at 88.
       Conversely, “testimony about an out-of-court statement which is used for a purpose other
       than to prove the truth of the matter asserted in the statement is not hearsay.” People v.
       Banks, 237 Ill. 2d 154, 180 (2010). Our supreme court has illustrated the distinction with the
       following example:
                “[W]itness A testif[ies] that ‘B told me that event X occurred’. If A’s testimony is
                offered for the purpose of establishing that B said this, it is clearly admissible–if
                offered to prove that event X occurred, it is clearly inadmissible ***.” People v.
                Carpenter, 28 Ill. 2d 116, 121 (1963).
       Hearsay statements are generally excluded because of the lack of opportunity to
       cross-examine the declarant. People v. Peoples, 377 Ill. App. 3d 978, 983 (2007). In this case,
       if the State used the out-of-court statements regarding the 1997 and 1994 robberies to prove
       that those robberies actually occurred, those statements were hearsay.
¶ 53        The State contends it did not use the statements to prove the truth of the matter asserted.
       Rather, the State argues, it used them to prove defendant’s modus operandi. As we explained
       above, modus operandi is an exception to the rule that other-crimes evidence is inadmissible.
       Pikes, 2013 IL 115171, ¶ 11. Even if other-crimes evidence is otherwise admissible,
       however, it may still “be excluded because it is offered in the form of a hearsay statement
       that does not meet a recognized exception to the hearsay rule.” People v. Dabbs, 239 Ill. 2d
       277, 290 (2010); see also People v. Patterson, 2013 IL App (4th) 120287, ¶ 59 (“other-crimes
       evidence may also be excluded if *** offered in the form of a hearsay statement not meeting
       an exception to the hearsay rule”); People v. Kinnett, 287 Ill. App. 3d 709, 715 (1997)
       (testimony admitted under an exception to the bar on other-crimes evidence may still be
       barred as hearsay).
¶ 54        The State relies on People v. Moss, 205 Ill. 2d 139 (2001), and People v. Lovejoy, 235 Ill.
       2d 97 (2009), in support of its contention that it did not use the statements regarding the 1994
       and 1997 robberies to prove the truth of the matter asserted. In Moss, the defendant was
       convicted of the murder of his ex-girlfriend and her daughter while he awaited trial on
       charges that he sexually assaulted his ex-girlfriend’s daughter. Moss, 205 Ill. 2d at 144. The
       State’s evidence showed that the defendant instructed his mother and aunt to kill his
       ex-girlfriend and her daughter so that they could not testify against him in the sexual assault
       trial. Id. at 145-46. The State presented evidence of statements the daughter had made to her
       mother, to the police, and to a doctor describing the defendant’s sexual assault. Id. at 154-56.
       Defendant averred that the evidence of these statements describing the sexual assault was
       inadmissible hearsay. Id. at 158-59.
¶ 55        The Moss court found that these statements were not used to prove the truth of the matter
       asserted, i.e., that defendant had sexually assaulted his ex-girlfriend’s daughter. Id. at 159-60.
       The court noted that the State’s theory was that the defendant had ordered his mother and
       aunt to kill his ex-girlfriend and her daughter so that they would not testify against him
       regarding the sexual assault. Id. at 160. In other words, his motive to kill them was to prevent
       them from testifying. Id. The Moss court found, therefore, that the out-of-court accusations
       “were not offered to prove that the sexual assault actually occurred; they were offered to
       prove defendant’s motive.” Id.
¶ 56        In Lovejoy, the defendant was convicted of murdering his stepdaughter. Lovejoy, 235 Ill.
       2d at 103. At the defendant’s murder trial, the State introduced evidence of statements made

                                                   - 10 -
       by defendant’s stepdaughter to her mother, her neighbor, medical personnel, and the police
       accusing the defendant of sexually assaulting her. Id. at 132-35.
¶ 57       The Lovejoy court found that the defendant’s stepdaughter’s statements were not hearsay.
       Id. at 138-39. The defendant conceded that his stepdaughter’s statements were used to prove
       that he had a motive to murder her. Id. at 132. The court noted that the statements were not
       used for the truth of the matter asserted, i.e., that the defendant had sexually assaulted his
       stepdaughter. Id. Rather, the State simply used the statements to prove that the defendant had
       a motive to kill her and silence her accusations. Id. at 139. The court concluded that the
       statements were not hearsay. Id. at 138-39.
¶ 58       In both Moss and Lovejoy, the State used evidence of the victims’ out-of-court statements
       accusing the defendants of sexual assault to prove the defendants’ motives to kill the victims.
       In both cases, the State’s theory was that the defendants killed their victims to avoid the
       consequences resulting from their victims’ accusations. Regardless of the truth or falsity of
       the out-of-court accusations, the mere fact that the victims made them gave the defendants
       reason to fear that they would be punished for sexual assault. Even if the victims had been
       lying about the assaults, the defendants would have had a motive to kill them and prevent
       them from testifying. The relevance of the out-of-court statements of the victims did not
       hinge upon the truth of the victims’ allegations; the relevance of those statements stemmed
       from the mere fact that the victims made the accusations. See Michael H. Graham, Graham’s
       Handbook of Illinois Evidence § 800.2 (10th ed. 2010) (“[T]o the extent that an out-of-court
       statement is relevant simply because of the fact it was said, the statement is not [hearsay].”).
¶ 59       In this case, however, the trial court considered the out-of-court statements as evidence of
       defendant’s modus operandi, not defendant’s motive. That fact distinguishes this case from
       Moss and Lovejoy. Evidence of a defendant’s modus operandi serves to prove a defendant’s
       identity. See People v. Dupree, 339 Ill. App. 3d 512, 520 (2003) (“[M]odus operandi
       evidence is not proper where identity is not at issue.”); Howard, 303 Ill. App. 3d at 730
       (“The use of modus operandi evidence is especially proper when the defendant’s identity is a
       central issue in the case.”). The reason is that, if one crime is committed in a unique way, it is
       more likely that a subsequent crime committed in the same way was done by the same
       person. Illgen, 145 Ill. 2d at 373. In order for testimony to be relevant to prove a defendant’s
       modus operandi, the facts described by that testimony must have been true. If the facts were
       not true–if there was no unique pattern of crimes–then no modus operandi existed, and there
       is no support for the contention that this evidence suggests that defendant was the offender.
       Evidence proving a modus operandi, unlike evidence proving a motive, must be true to be
       relevant.
¶ 60       In this case, the trial court admitted the out-of-court statements of Moore, Mireles,
       Krikvana, Defenbaugh, Zaye, Pulido, Sneathan, Deheer, and Contrarez to prove that
       defendant had a modus operandi of robbing older women as they came home from the
       grocery store. The State used this evidence to prove that it was defendant who robbed
       Schenck. If the out-of-court statements describing the unique facts of the prior robberies were
       untrue, then defendant did not have the claimed modus operandi. If defendant did not have a
       modus operandi, evidence of the prior robberies would make it no more likely that defendant
       robbed Schenck. In sum, the truth of the matter asserted in the out-of-court statements–that
       defendant robbed Moore, Mireles, Defenbaugh, and Zaye–was essential to their being used


                                                   - 11 -
       to prove defendant’s modus operandi. We find the State’s reliance on Moss and Lovejoy to be
       misplaced.
¶ 61       Our supreme court’s decision in People v. Cloutier, 178 Ill. 2d 141 (1997), bolsters our
       conclusion. In Cloutier, the defendant was convicted of first-degree murder. Id. at 147. At the
       defendant’s capital sentencing hearing, the State presented the testimony of a police detective
       who recounted conversations he had with two women who reported being attacked by the
       defendant. Id. at 149-50. Both of these women told the detective that the defendant forced
       them into his car, tore their clothes off, and showed them the body of his murder victim. Id.
       On appeal, the defendant argued that this testimony was inadmissible hearsay. Id. at 154. The
       State argued that it used the testimony to prove defendant’s state of mind–“that [the]
       defendant displayed the victim’s body *** in an effort to force them to ‘submit to his
       wishes’ ”–not for the truth of the matter asserted. Id. at 155.
¶ 62       The Cloutier court found that the detective’s testimony about his conversations with the
       two women was hearsay. Id. The court stated, “Unless the out-of-court statements by [the
       two women] were true, they could have no bearing on [the] defendant’s mental state.” Id.
       The court noted that, in order to prove that the defendant displayed the victim’s body to
       compel the two women to comply with him, defendant actually had to have shown them the
       body. Id. Thus, the women’s statements “necessarily depended on the truth of the matter
       asserted.” Id.
¶ 63       In this case, like Cloutier, the statements at issue only bore on defendant’s modus
       operandi insofar as they were true. Defendant would have had no modus operandi unless he
       had actually engaged in a series of robberies of older women as they returned home from the
       store. Habiak and Hatton’s testimony about their conversations with Moore, Mireles,
       Krikvana, Defenbaugh, Zaye, Pulido, Sneathan, Deheer, and Contrarez would have had no
       bearing on defendant’s modus operandi unless their statements describing the robberies were
       true. Yet, because this evidence was from police officers who did not witness the crimes,
       defendant could not test the truth of those statements through cross-examination at his trial.
       We find that the out-of-court statements of Moore, Mireles, Krikvana, Defenbaugh, Zaye,
       Pulido, Sneathan, Deheer, and Contrarez constituted hearsay.
¶ 64       Even if a statement is hearsay, it may be admissible if an exception to the rule against
       hearsay applies. Ill. R. Evid. 803, 804 (eff. Jan. 1, 2011); Caffey, 205 Ill. 2d at 88-89. The
       State does not argue that any established hearsay exception applies; it maintains only that the
       statements were not used to prove the truth of the matter asserted. The State cites no
       cases–nor have we found any–in which an Illinois court recognized modus operandi as an
       exception to the hearsay rule. For the reasons stated above, we decline to create an exception
       to the hearsay rule for evidence of a defendant’s modus operandi.
¶ 65       We must still determine whether the erroneous admission of the hearsay evidence was
       harmless. The remedy for the erroneous admission of hearsay is reversal, unless the record
       clearly shows that the error was harmless. People v. Miles, 351 Ill. App. 3d 857, 867 (2004).
       “The admission of hearsay evidence is harmless error where there is no reasonable
       probability that the [trier of fact] would have acquitted the defendant absent the hearsay
       testimony.” People v. Nevitt, 135 Ill. 2d 423, 447 (1990). The erroneous admission of hearsay
       evidence is harmless error “when it is merely cumulative or is supported by a positive
       identification and other corroborative circumstances.” People v. Prince, 362 Ill. App. 3d 762,
       776 (2005).

                                                 - 12 -
¶ 66        Courts consider three factors in determining whether an error was harmless: (1) whether
       the error contributed to the conviction; (2) whether the other evidence in the case
       overwhelmingly supported the conviction; and (3) whether the improperly admitted evidence
       was cumulative or duplicative of the properly admitted evidence. People v. Patterson, 217 Ill.
       2d 407, 428 (2005). We consider each of these factors in turn.
¶ 67        With respect to the first factor, the admission of the hearsay evidence did not
       significantly contribute to defendant’s conviction. The trial court’s findings show that it
       “considered proof of other crimes” in making its decision. Yet the trial court discussed the
       properly admitted testimony of Evans, Jokubaitis, and Officer Foley in detail. The trial court
       did not discuss the individual testimony of the out-of-court declarants as probative of
       defendant’s guilt. Instead, it simply referred to the “proof of other crimes” as a whole. Some
       of that “proof of other crimes”–Jokubaitis’s prior testimony and defendant’s admissions to
       Officer Habiak–was admissible. While the improper evidence may have contributed to
       defendant’s conviction, its relative impact on the trier of fact appears slight.
¶ 68        As to the second factor, the other evidence in this case overwhelmingly supported
       defendant’s conviction. Evans positively identified defendant as the robber after observing
       him for several minutes in broad daylight. At one point, Evans stood a few feet away from
       defendant and spoke to him face-to-face as he taunted her. Evans saw the robber get into a
       white car that resembled the rear of defendant’s car. Evans identified defendant in a photo
       array, in a lineup, and in open court. One month after Schenck was robbed, Officer Foley saw
       defendant driving a white SUV in the same area, wearing a brown jacket similar to the one
       worn by Schenck’s robber. Officer Prendkowski testified that, about one month after
       Schenck’s robbery, he saw defendant follow an elderly woman from a grocery store, lose
       sight of her, then return to the grocery store parking lot.
¶ 69        The admissible evidence of defendant’s modus operandi bolstered Evans’ identification.
       Jokubaitis identified defendant as the man who punched her and took her purse when she
       arrived home from the grocery store. Although defendant had been acquitted of Jokubaitis’
       robbery, that fact did not preclude the court from taking her identification into account. See
       Dowling v. United States, 493 U.S. 342, 347-50 (1990) (evidence of prior offense, of which
       defendant was acquitted, could be considered to prove defendant’s identity in a subsequent
       trial). Officer Habiak also testified that, when he questioned defendant, defendant confessed
       to robbing Moore and Mireles. That testimony was not hearsay. Ill. R. Evid. 801(d)(2) (eff.
       Jan. 1, 2011) (statement by party-opponent is not hearsay). Although defendant’s confession
       to the 1997 robberies could not be used to prove his propensity to commit crimes generally,
       because the content of his statement established factual similarities to the instant offense, it
       served as additional evidence of his modus operandi, which corroborated Evans’
       identification.
¶ 70        Defendant’s alibi evidence failed to contradict the State’s evidence. Berton Downing
       testified that defendant was with him on the day of the robbery, but that defendant took a
       lunch break sometime between 11 a.m. and 1 p.m. Schenck’s robbery occurred in the early
       afternoon. In sum, the evidence overwhelmingly established that defendant took Schenck’s
       purse.
¶ 71        As to the third factor, the improper evidence of defendant’s 1994 and 1997 robberies was
       largely cumulative of the properly admitted other-crimes evidence at trial. Jokubaitis testified
       that defendant robbed her while she returned from the same grocery store defendant followed

                                                  - 13 -
       Schenck home from. Officer Habiak’s testimony that defendant admitted to robbing both
       Moore and Mireles in 1997 was admissible as additional evidence of defendant’s modus
       operandi, as it was neither hearsay nor used to prove defendant’s propensity for criminality.
       The trial court used this evidence as proof of defendant’s modus operandi, the same reason
       that the testimonial hearsay was used. Although the improperly admitted hearsay offered
       additional proof of defendant’s modus operandi, it served the same purpose as the properly
       admitted evidence from Jokubaitis and Officer Habiak.
¶ 72       We need not reach defendant’s claim that the admission of Habiak and Hatton’s
       testimony violated his rights under the confrontation clause because, even if it did, we would
       likewise conclude that the error was harmless. See In re E.H., 224 Ill. 2d 172, 180 (2006)
       (“[T]he appellate court *** must first consider whether it is necessary to consider [a]
       constitutional question [if] the court ha[s] already ruled admission of the evidence
       harmless.”). We are mindful that “there is a somewhat higher bar for constitutional error than
       other trial error to be deemed harmless.” Id; see People v. Mullins, 242 Ill. 2d 1, 23 (2011)
       (“Because a defendant’s interests are heightened where constitutional error is at issue
       [citation], the burden of proof is on the State to show beyond a reasonable doubt that the
       constitutional error did not affect the outcome of the proceeding [citation].” (Internal
       quotation marks omitted.)). For the reasons stated above, however, we find that the erroneous
       admission of the hearsay evidence in this case was harmless under either standard.

¶ 73                                 Ineffective Assistance of Counsel
¶ 74        Defendant next contends that he was denied the effective assistance of counsel, where his
       attorney (1) failed to make a speedy trial demand, and (2) failed to move to suppress
       eyewitness identifications. The State responds that defendant was tried within the 120-day
       statutory period, and a motion to suppress would have been futile.
¶ 75        The right to counsel guaranteed by the United States and Illinois Constitutions includes
       the right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970,
       art. I, § 8; Strickland v. Washington, 466 U.S. 668, 686 (1984). To prevail on an ineffective
       assistance of counsel claim, “[a] defendant must show that counsel’s performance fell below
       an objective standard of reasonableness and that there is a reasonable probability that, but for
       counsel’s unprofessional errors, the result of the proceeding would have been different.”
       People v. Manning, 241 Ill. 2d 319, 326 (2011) (citing Strickland, 466 U.S. at 688). Under
       the first Strickland prong, a defendant must show that his trial attorney’s performance was
       deficient. People v. Enis, 194 Ill. 2d 361, 376 (2000). Under the second, a defendant must
       show that counsel’s deficient performance undermined confidence in the trial’s outcome. Id.
       We turn first to defendant’s speedy trial claim.
¶ 76        Defendant argues that his attorney was ineffective, where she failed to make a speedy
       trial demand. Defendant raises both constitutional and statutory speedy trial concerns. Both
       the United States and Illinois Constitutions guarantee the right to a speedy trial. U.S. Const.,
       amend. VI (“[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and
       public trial”); Ill. Const. 1970, art. I, § 8 (“In criminal prosecutions, the accused shall have
       the right *** to have a speedy public trial by an impartial jury ***.”). To assess a
       constitutional speedy trial claim, we must look to the record in its totality to determine
       whether the defendant has enjoyed his constitutional right. People v. Crane, 195 Ill. 2d 42, 48


                                                  - 14 -
       (2001). In part, we must examine four factors: the length of delay, reasons for delay,
       prejudice (if any), and defendant’s assertion of his right. Id.
¶ 77        The statutory right to a speedy trial is not precisely equivalent to the constitutional right.
       People v. Staten, 159 Ill. 2d 419, 426 (1994). In Illinois, “[e]very person in custody *** for
       an alleged offense shall be tried by the court having jurisdiction within 120 days from the
       date he [or she] was taken into custody unless delay is occasioned by the defendant ***.
       Delay shall be considered to be agreed to by the defendant unless he or she objects to the
       delay by making a written demand for trial or an oral demand for trial on the record.” 725
       ILCS 5/103-5(a) (West 2010). Where, however, a person is in custody for more than one
       charge, he must be tried on the first charge within 120 days and on the second or subsequent
       charges within 160 days from the date of judgment in the first case. 725 ILCS 5/103-5(e)
       (West 2010). To succeed in a statutory speedy trial claim, a defendant must show that he was
       not tried within the statutory period, and he did not cause or contribute to the delay. Staten,
       159 Ill. 2d at 426. When the parties agree, on the record, to a continuance, the delay is
       attributable to the defendant. People v. Burchette, 257 Ill. App. 3d 641, 657 (1993).
¶ 78        Defendant was arrested on January 18, 2009, for both the Jokubaitis and Schenck
       robberies. His trial in the Schenck case did not begin until August 31, 2011. In the interim,
       defendant was tried in the Jokubaitis case and also agreed to many continuances. According
       to the State, after accounting for the Jokubaitis trial and agreed continuances, 46 days of the
       speedy trial period passed before defendant was tried in this case. According to defendant’s
       calculation, 52 days had passed. Under either calculation, defendant was tried within the
       statutory period. Defense counsel’s performance cannot be adjudged deficient for her failure
       to make a futile speedy trial demand. People v. Cordell, 223 Ill. 2d 380, 392-93 (2006).
¶ 79        Although defendant was in custody for a significant amount of time prior to his trial in
       the instant case, that time was largely filled with discovery, pretrial motions, and trial in the
       Jokubaitis case. Nothing in the record shows that counsel was unreasonable in agreeing to
       these continuances or that the outcome of defendant’s trial would have been different had
       counsel objected to them. Defendant has thus failed to show that his trial attorney was
       ineffective for failing to demand a speedy trial. People v. Phyfiher, 361 Ill. App. 3d 881, 887
       (2005).
¶ 80        Defendant also claims that his trial counsel was ineffective for failing to move to
       suppress Evans’ identification of him. The State responds that counsel’s performance was not
       deficient, because a motion to suppress would not have been successful and defendant did
       not suffer prejudice. We agree that counsel was not ineffective because a motion to suppress
       defendant’s identification would not have succeeded.
¶ 81        “The vagaries of eyewitness identification are well-known; the annals of criminal law are
       rife with instances of mistaken identification.” United States v. Wade, 388 U.S. 218, 228
       (1967). Illinois mandates that photo array suspects “not appear to be substantially different
       from ‘fillers’ or ‘distracters’ in the *** photo spread, based on the eyewitness’ previous
       description of the perpetrator, or based on other factors that would draw attention to the
       suspect.” 725 ILCS 5/107A-5 (West 2010). Defendant bears the burden of proving that a
       pretrial identification was impermissibly suggestive. People v. Brooks, 187 Ill. 2d 91, 126
       (1999). Even where a defendant meets this burden, the State may show by clear and
       convincing evidence that the identification was based on the witness’ independent
       recollection. Id. Where, as here, an ineffectiveness claim is based on trial counsel’s failure to

                                                   - 15 -
       file a motion to suppress, a defendant must establish that the unargued motion is meritorious
       and that a reasonable probability exists that the trial outcome would have been different had
       the evidence been suppressed. People v. Henderson, 2013 IL 114040, ¶ 15.
¶ 82        Here, defendant argues that both the photo array and the lineup were unduly suggestive.
       As to the photo array, he complains that his photograph alone included the words “sentencing
       information” at the bottom, and he appears to be wearing an Illinois Department of
       Corrections light blue jumpsuit. We disagree. Two words appear at the bottom of defendant’s
       photograph. Although they appear to state, “sentencing information,” those words are cut in
       half horizontally and barely legible. More importantly, given their placement, the words do
       not clearly correspond to defendant’s photograph. The photographs also do not support
       defendant’s contention that he “appeared to be wearing” an Illinois Department of
       Corrections jumpsuit; defendant’s photograph only depicts his head down to the top of his
       shoulders. In all, the six photographs in the photo array are quite similar, each representing a
       black male with nearly the same build and slight facial hair. The photo array provided little
       grounds for a motion to suppress.
¶ 83        The lineup is more problematic. Physically, the four lineup participants are fairly
       similar–all black males of roughly the same build, hair, facial hair, and clothing. However,
       defendant wore a brown parka, while the other three participants wore black jackets. The
       State presented evidence that the offender in both the Jokubaitis and Schenck cases wore a
       brown jacket. At trial, Evans testified that she identified defendant based in part on his
       jacket:
                   “Q. [W]hat did you recognize about the person you identified?
                   A. All his face, because I did see his face, and then also he was wearing the very
               same jacket he wore on that day.
                   Q. This brown parka he has in the picture, that is the same coat he had on the day
               he robbed Mrs. Schenck?
                   A. Yes.”
       Defendant argues that this unduly suggestive lineup placed a spotlight on defendant.
¶ 84        Even though the lineup procedures may have been suggestive, there was strong evidence
       in this case that Evans identified defendant based on her own independent recollection. See
       People v. McTush, 81 Ill. 2d 513, 520 (1980) (“While it is the defendant’s burden to establish
       that the pretrial confrontation was impermissibly suggestive [citation], once accomplished,
       the State may nevertheless overcome that obstacle, by a clear and convincing showing, based
       on the totality of the surrounding circumstances, that the witness is identifying the defendant
       solely on the basis of his memory of events at the time of the crime.” (Internal quotation
       marks omitted.)). When evaluating identifications, Illinois courts look to (1) the opportunity
       the victim had to view the criminal at the time of the crime; (2) the witness’s degree of
       attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of
       certainty demonstrated by the victim upon identification; and (5) the length of time between
       the crime and the identification. People v. Slim, 127 Ill. 2d 302, 307-08 (1989) (citing Neil v.
       Biggers, 409 U.S. 188, 199-200 (1972)).
¶ 85        Here, Evans had ample opportunity to observe defendant, even speaking to him before he
       fled. At one time, Evans stood face-to-face with defendant, only 7 or 10 feet away. She later
       identified defendant in the nonsuggestive photo array before identifying him in the lineup. In


                                                  - 16 -
       commenting on the lineup procedures, Evans stated that she first recognized defendant’s
       face. Given Evans’ prior observation and identification of defendant, we cannot say that there
       is a reasonable probability that the trial outcome would have been different had the
       suggestive lineup identification been suppressed. Henderson, 2013 IL 114040, ¶ 15.
       Accordingly, we reject defendant’s ineffective assistance of counsel claims.

¶ 86                                        Reasonable Doubt
¶ 87       Defendant contends that the State failed to prove him guilty beyond a reasonable doubt.
       The State must prove each element of an offense beyond a reasonable doubt. Jackson v.
       Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 358, 361-64 (1970). Where a
       defendant alleges on appeal that the State failed to meet this burden, a reviewing court,
       considering the evidence in the light most favorable to the prosecution, must determine
       whether any rational trier of fact could have found beyond a reasonable doubt the essential
       elements of the crime. Jackson, 443 U.S. at 318-19. We must carefully examine the evidence,
       while considering that the trier of fact saw and heard the witnesses. People v. Smith, 185 Ill.
       2d 532, 541 (1999).
¶ 88       Defendant argues that the State failed to prove him guilty beyond a reasonable doubt
       because its case relied on unduly suggestive identifications and inadmissible other-crimes
       evidence. Defendant’s argument merely reframes the issues we addressed above. Viewed
       through the lens of reasonable doubt, the result here is the same. Considering the evidence in
       the light most favorable to the prosecution, we believe a rational trier of fact could have
       found defendant guilty beyond a reasonable doubt. As we stated above, there was strong
       evidence in this case that Evans identified defendant based on her own independent
       recollection. As we have found Evans’ identification of defendant to be reliable, that
       evidence is alone sufficient to sustain defendant’s conviction. Slim, 127 Ill. 2d at 307. The
       properly admitted modus operandi evidence in this case bolstered Evans’ identification of
       defendant. We find that sufficient evidence was presented to affirm defendant’s conviction.

¶ 89                                      CONCLUSION
¶ 90      Based on the foregoing, we affirm defendant’s conviction and sentence.

¶ 91      Affirmed.




                                                 - 17 -
