                             2018 IL App (2d) 160322 

                                  No. 2-16-0322

                           Opinion filed August 22, 2018 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Boone County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-364
                                       )
TITA G. TRAJANO,                       ) Honorable
                                       ) C. Robert Tobin III,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       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 negligence 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
2018 IL App (2d) 160322


¶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,




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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 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.



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¶ 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



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2018 IL App (2d) 160322


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,

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.



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2018 IL App (2d) 160322


¶ 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




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2018 IL App (2d) 160322


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.

¶ 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.




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2018 IL App (2d) 160322


¶ 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



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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.

¶ 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.



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¶ 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.

¶ 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,



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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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