                                   2015 IL App (1st) 133406

                                                                 FIRST DIVISION
                                                                 AUGUST 10, 2015

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THE PEOPLE OF THE STATE OF ILLINOIS,                       )       Appeal from the
                                                           )       Circuit Court of
                      Plaintiff-Appellee,                  )       Cook County.
                                                           )
            v.                                             )       No. 12 CR 14956
                                                           )
ANTHONY MALCOLM,                                           )       Honorable
                                                           )       Joseph Claps,
                      Defendant-Appellant.                 )       Judge Presiding.

       JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
       Justices Connors and Harris concurred in the judgment and opinion.

                                            OPINION

¶1     Following a bench trial, the circuit court of Cook County found defendant, Anthony

Malcolm, guilty of first-degree murder and robbery. Subsequently, the defendant was sentenced

to 22 years for first-degree murder and 8 years for robbery to be served consecutively. On

appeal, the defendant argues: (1) the trial court erred in finding the defendant guilty of first-

degree murder and robbery based on the accountability theory; (2) the trial court erred in

considering a nontestifying co-defendant's statement as substantive evidence as a basis for the

finding of guilt; (3) the trial court erred in sentencing the defendant to more than the minimum

sentencing standards. For the following reasons, we affirm the judgment of the circuit court of

Cook County.

¶2                                     BACKGROUND

¶3     On July 14, 2012, at approximately 9:20 a.m., the defendant was placed under arrest by

Detective Morales and his partner, Detective Taraszkiewicz of the Chicago Police Department, at
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his residence at 5549 North Broadway, Chicago, Illinois. This was done after co-defendant,

Malik Jones (Jones), identified the defendant as the person holding a cellular telephone and

recording the assault of the victim, Delfino Mora. The defendant was charged with three counts

of first-degree murder and one count of robbery. 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3), 18-1(a)

(West 2012).

¶4     On March 25, 2013, a motion was filed to sever the defendant’s trial from Jones and

another co-defendant, Nicolas Ayala (Ayala), which the trial court granted. On May 23, 2013,

the trial court conducted defendant's bench trial.

¶5     Chicago police officer Collazo (Officer Collazo) testified that on July 10, 2012, he was

initially assigned to investigate a man down in the alley of 6308 North Artesian. Upon arriving

at the scene, he noticed a red truck and a man lying face up on the ground next to a dumpster.

Officer Collazo testified that the man was breathing, but had blood and vomit coming from his

mouth and he was unresponsive. Sulton Shaikh was also at the scene and had initially found the

man lying on the ground. Officer Collazo called for an ambulance and then attempted to identify

the victim. No identification was found on the victim.

¶6     After the ambulance took the man to the hospital, Officer Collazo went to the red truck

that was parked on the right side of the alley and found the victim’s name and address from his

vehicle registration. From there, Officer Collazo went to the victim’s home and notified his

family of the incident. He then returned to the police station to write his reports.

¶7     Chicago police detective Mancuso testified that on July 10, 2012, he was assigned to

investigate a man found in the alley at 6308 North Artesian. Upon arriving at the scene, he was

informed that the victim was taken to St. Francis Hospital and he then canvassed the area around

the alley. Specifically, he also spoke with Aron Rios (Rios). Detective Mancuso testified that he


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believes that Rios said that he heard people laughing and having fun in the alley. The crime

scene report was introduced into evidence by the defense as Defendant's Exhibit Number 1. In

the crime scene report, nothing is mentioned about Rios saying he heard people laughing.

Detective Mancuso also testified as to what the scene of the incident looked like and identified

photograph exhibits of the alley and the dumpster area where the victim was found. After he

canvassed the area, he went to St. Francis Hospital and found out that the victim was in critical

condition and had been taken into surgery.

¶8     Rios testified that on July 10, 2012, between 5 a.m. and 5:30 a.m., he left his Chicago

apartment at 2442 West Rosemont through the alley between Artesian and Campbell to go to

work. On his way down the alley, he saw a couple of individuals at the end of the alley in front

of Rosemont Street. In his testimony at trial, Rios noted that the individuals laughed and

commented about someone snoring. 1 Rios also noted that there were two people with another

one behind them and he did not notice anyone with a backpack.

¶9     Maria Mora (Maria) testified that she had been married to the victim for 41 years and had

12 children. The victim did not have a job at the time of his death, but had collected metal scrap

and cans to raise money for his family. On July 10, 2012, at approximately 5 a.m., the victim

left his home at 6014 North Washtenaw in Chicago to collect scrap metal. He was 62 years old

and left his home with his wallet, cellular telephone, and cap in a red Ford truck.

¶ 10   At approximately 8:30 a.m., an officer arrived at Maria's door and told her that the victim

had passed out and had been taken to St. Francis Hospital. Maria then went to the hospital and

found him in critical condition. The victim never opened his eyes or spoke again. On July 11,



       1
        According to his testimony, the first time Rios mentioned to anyone that the people were
laughing and having fun was the morning of trial.

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2012, at approximately 3:30 p.m., the victim died. When Maria was able to see the victim's

belongings, there was no wallet or cellular telephone with them.

¶ 11   Dr. Lauren Woertz (Dr. Woertz), the medical examiner for Cook County, testified that

she preformed the autopsy on the victim on July 13, 2012. The autopsy report was admitted into

evidence along with photos of the victim's face postmortem, his head showing the suture incision

from the craniotomy, and a picture of his brain. Dr. Woertz noted there were bruises on the right

eye, on the right and left side of Mora's chest, and on the left forearm. There was also a scrape

on the left side of the victim’s back. Dr. Woertz reviewed medical records that accompanied the

body, which noted evidence of right subdural hematoma, intraventricular hemorrhage,

subarachnoid hemorrhage, with contusions to the brain, multiple facial fractures and a diffused

hemorrhage under the scalp. After her internal investigation, she confirmed the presence of a

right subdural hematoma, an intraventricular hemorrhage of the brain, a subarachnoid

hemorrhage of the brain, bruises on the brain's temporal lobes, and bruises on the tongue. Dr.

Woertz determined that the cause of death of the victim was craniocerebral injuries resulting

from blunt head trauma sustained from an assault. Dr. Woertz testified that her opinion was

within a reasonable degree of forensic, scientific certainty as to the manner of the victim's death.

¶ 12   Emmanuel Mora (Emmanuel), the victim’s 21-year-old son, testified that he received a

call on July 10, 2012, around 2 p.m. to 3 p.m., from a co-worker, Mirena, to let him know that

she was sorry for what happened to his father. Two to three hours later, he received a second

call from Mirena. Mirena told him on this call that her boyfriend viewed the Facebook page of

Jones and saw a video of a man being punched.            Mirena and her boyfriend recorded the

Facebook video and met Emmanuel at the police station to speak with detectives. At this time,

Emmanuel saw the video for the first time and identified the man in the video to be his father.


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The video was approximately one minute long, was admitted into evidence and played for the

trial court during Emmanuel’s testimony.

¶ 13    On July 14, 2012, a woman came to the victim’s home and gave the family a wallet that

she had found. Denise Shaeffer (Shaeffer) testified that she found the wallet in the alley behind

the fence of her yard. She was taking the garbage to the cans in the alley of the 6200 block of

North Campbell, when she found a brown wallet that was wet and dirty lying on the ground. She

picked up the wallet and opened it to find the identification and address of the victim. There was

no cash in the wallet. She then returned the wallet to the victim’s family who notified her that

the victim had passed away. The next day, Shaeffer called the police and let them know she

found the victim’s wallet.

¶ 14    Detective Juan Carlos Morales (Detective Morales) testified that on July 14, 2012, shortly

after 2 a.m., he and his partner, Detective Taraszkiewicz were assigned to investigate the

victim’s death. At this time, they were looking for Jones as a subject related to the crime. At

approximately 2:45 a.m., both detectives went to 8849 West 167th Street in Orland Hills,

Illinois, where they located Jones and arrested him. They recovered a cellular telephone in

Jones’ possession. The address of 8849 West 167th Street was the home of Sanchez Guzman.

Vaneece Lew (Lew) was also present at this address and agreed to accompany the detectives to

the police station.

¶ 15    Detective Morales testified that upon arrival at the police station, Jones was placed in an

interview room and Detective Morales had a conversation with him. After this, the detectives

looked for two other suspects: Ayala and the defendant. Lew assisted with the identification and

the detectives located pictures of the two suspects on the internet.




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¶ 16   At approximately 9:10 a.m. on July 14, 2012, the detectives arrested Ayala at 6306 North

Tallman Avenue, in Chicago. At approximately 9:20 a.m., the detectives arrested the defendant

at 5549 North Broadway, in Chicago.         A video recording known as an electric recording

interrogation system (ERI) was made of the defendant's interview. Three clips (2 minutes, 10

minutes, and 20 minutes) from the videotaped interrogation were introduced as evidence and

played for the trial court during Detective Morales' testimony. Detective Morales made an in-

court identification of the defendant at trial. Detective Morales testified that at approximately

11:15 a.m. on July 14, 2012, both he and Detective Taraszkiewicz were present in the interview

room with the defendant, who was advised of his Miranda rights and agreed to have a

conversation with the detectives. During the interrogation, the defendant informed the detectives

that on July 10, 2012, between 5 a.m. and 6 a.m., the defendant and Ayala were walking towards

Ayala’s home at 6306 North Tallman Avenue, in Chicago. At some point, Jones joined them.

As they approached the alley between Artesian Avenue and Campbell Avenue, Jones turned on

the video recording function of his cellular telephone.

¶ 17   The video recording made from Jones' cellular telephone was played at trial during

Emmanuel’s testimony. The video recording showed Jones handing the cellular telephone to

Ayala, while saying "somebody hold my phone" and stating he was going to "knock this

motherfucker out." Ayala then said he was going to "hit him next." The defendant then asked if

Ayala was recording the incident and then said "just give it to me," referring to Jones' cellular

telephone. Jones then approached the victim who was standing near the dumpster in the alley,

and asked the victim if he had any money in his pocket. Ayala and the defendant followed Jones

while the defendant recorded the incident on Jones' cellular telephone. Jones stood just to the

left of the victim while Ayala was right in front of the victim with the defendant just to the right


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of Ayala. After Jones asked the victim if he had any money, the victim answered in Spanish.

Jones asked Ayala if he knew what the victim was saying and Ayala answered that he did not

know. Jones then yelled, "Nation!," and punched the victim in the head and then yelled, "Bitch!"

The victim fell to the ground and hit his head on the pavement. The video recording then ended

with Jones laughing and running to the end of the alley followed by the defendant and Ayala.

¶ 18   According to the videotaped interrogation, the defendant told Detective Morales that

Jones then returned to the victim and took his wallet. Jones gave $20 to Ayala. The defendant

did not return to the alley with Jones and did not take any of the proceeds from the wallet.

Detective Morales also testified that the cellular telephone found on Jones when he was arrested

was the cellular telephone of the victim.

¶ 19   During Detective Morales' testimony, defense counsel objected to admitting into

evidence portions of the defendant's videotaped interrogation as substantive evidence because

during the interrogation of the defendant, Detective Morales mentioned statements that Jones had

told the police earlier. The trial court then noted that this is a bench trial and that it can identify

what is or is not hearsay and will only apply what is not hearsay to his ruling.

                       "THE COURT: All right. Well, in the scope of this type of

               evidence one this is a bench trial. I know what’s admissible and

               what’s not.

                       And in the course of an interrogation which part of this is,

               there is going to be and has been statements by both police officers

               that are based on hearsay.

                       MR. COYNE [defense attorney]: Correct.




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                         THE COURT: That are presented to the defendant for a

                response. Their questions don’t prevent – their questions in most

                cases are inadmissible hearsay. But they give reference to the

                answers he gives. And only those answers that apply to what he

                heard and saw the defendant is admissible. I know the difference."


¶ 20    The defense counsel’s objection during Detective Morales' testimony was specifically

about when the detective had asked the defendant during the interrogation if this was part of

some sort of game and that the defendant had initially informed Detective Morales that it was

just a random occasion. Detective Morales proceeded to ask the defendant what that game was

called and the defendant responded that he did not understand. Detective Morales admitted at

trial that this line of questioning during the defendant’s interrogation occurred after he spoke to

Jones and Jones had informed Detective Morales about some kind of game. Detective Morales

testified he knew the name of the game, but that he wanted the defendant to say it during the

interrogation. The defendant did eventually inform the detective during the interrogation that the

game was called "Point Him Out, Knock Him Out." Detective Morales testified that when he

asked the defendant specifically if that is what was going on during the victim's assault, the

defendant’s response was "no, no, no" and that this was just a random occasion. Eventually, the

defendant told Detective Morales that Jones was "probably, I don’t know, he probably [was],"

playing the game at the time of the victim's assault. When Detective Morales asked what was

going through his mind, the defendant responded, "It was shocking. I have never seen anything

like that in my life."

¶ 21    The State rested their case and the bench trial continued on June 18, 2013. The defendant

elected not to testify. The defense filed written stipulations regarding the testimony of Detective

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Morales and the State's exhibits 2 (photograph of the victim at time of death), 3 (photograph of

the alley where the victim was found), and 11 (videotaped interrogation of the defendant). The

court and the State accepted these stipulations. The defendant verified that he was 19 years old,

a senior in high school with a C average. The defense rested their case.

¶ 22       On July 1, 2013, the trial court found the defendant guilty of first-degree murder and

robbery under a theory of accountability.

¶ 23       On July 26, 2013, the defendant filed a motion for a new trial or acquittal, which was

denied by the trial court.

¶ 24       On September 12, 2013, a sentencing hearing was held. A presentencing investigation

report (PSI) that was completed prior to the sentencing hearing was admitted into evidence. The

report noted that the defendant had no criminal history.         The PSI also indicated that the

defendant never had any problems related to alcohol and that he drank once or twice a month.

The PSI noted that the defendant had been using marijuana three to four times per week since the

age of seventeen, and that he normally spent fifty dollars per week on marijuana. The defendant

noted that he had smoked marijuana the night before the offense and had consumed one shot of

tequila.

¶ 25       During the sentencing hearing, the defense presented mitigating evidence through the

testimony of multiple witnesses: Winston Malcolm, Stephanie Malcolm, Fabian Maxey Jr.,

Barbara Janusek, Rosemary Rodriguez, Howard Williams, and Scott Johnson.

¶ 26       Following the parties' arguments, the trial court sentenced the defendant to 22 years in

prison for first-degree murder and 8 years in prison for robbery, to be served consecutively. 2

The trial court also noted that the defendant will be subjected to three years of mandatory

           2
         Court transcript mentions that the first-degree murder charges were merged but it does
not say which ones were merged and which one remained.

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supervised release. The court stated that good people do bad things that still have consequences.

The court continued that there was not any remorse when the defendant spoke and that "there

must be some deterrence to people who choose violence as some pastime event."

¶ 27   On October 1, 2013, defense counsel filed a motion to reduce sentence, which the court

denied. On October 11, 2013, the defense filed a timely notice of appeal.

¶ 28                                      ANALYSIS

¶ 29   We first note that this court has jurisdiction over this case pursuant to Illinois Supreme

Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Dec. 11, 2014).

¶ 30   We determine the following issues on appeal: (1) whether the trial court erred in

convicting the defendant of first-degree murder and robbery based on the theory of

accountability; (2) whether the trial court erred in considering evidence of the nontestifying co-

defendant’s statements within the context of the defendant's videotaped interrogation; and (3)

whether the trial court properly considered the defendant's background during sentencing.

¶ 31   We first determine whether the trial court erred in convicting the defendant of first-

degree murder and robbery based on the theory of accountability.

¶ 32   The Illinois law regarding first-degree murder requires, "[a] person who kills an

individual without lawful justification commits first[-]degree murder if, in performing the acts

which cause the death: (1) he either intends to kill or do great bodily harm to that individual or

another, or knows that such acts will cause death to that individual or another; or (2) he knows

that such acts create a strong probability of death or great bodily harm to that individual or

another." 720 ILCS 5/9-1 (West 2012). The Illinois statute which describes robbery states that a

person commits robbery when he "knowingly takes property *** from the person or presences of

another by the use of force or by threatening the imminent use of force." 720 ILCS 5/18-1(a)


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(West 2012). The trial court convicted the defendant of first-degree murder and robbery under

the theory of accountability.

¶ 33   Under Illinois law which outlines accountability, "[a] person is responsible for conduct

which is an element of an offense if the conduct is either that of the person himself, or that of

another and he is legally accountable for such conduct as provided in section 5-2 [of the Illinois

Criminal Code of 2012], or both." 720 ILCS 5/5-1 (West 2012). The Illinois statute on

accountability states that a defendant is legally accountable for the actions of another when:

                       "[E]ither before or during the commission of an offense,

               and with the intent to promote or facilitate that commission, he or

               she solicits, aids, abets, agrees, or attempts to aid that other person

               in the planning or commission of the offense.

                       When 2 or more persons engage in a common criminal

               design or agreement, any acts in the furtherance of that common

               design committed by one party are considered to be the acts of all

               parties to the common design or agreement and all are equally

               responsible for the consequences of those further acts.          Mere

               presence at the scene of crime does not render a person

               accountable for an offense; a person's presence at the scene of a

               crime, however, may be considered with other circumstances by

               the trier of fact when determining accountability." 720 ILCS 5/5-

               2(c) (West 2012).




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In the case at hand, the defendant challenges whether the facts of the case meet all elements of

the crime to convict the defendant of first-degree murder and robbery beyond a reasonable doubt

based on the theory of accountability.

¶ 34   The defendant argues that this court should review this issue de novo because this issue

questions whether the trial court’s application of the law was accurately applied, although the

facts of the case are not at issue. People v. Chirchirillo, 393 Ill. App. 3d 916, 921 (2009). The

defendant also argues that because there is a video recording of the crime and video recording of

the police interrogation available that this court should review this issue de novo. People v.

Flores, 2014 IL App (1st) 121786, ¶ 35. The State responds that the proper standard of review is

whether after viewing the evidence in a light most favorable to the State, any rational trier of fact

could have found the elements of the crime beyond a reasonable doubt. People v. Fernandez,

2014 IL 115527, ¶ 13. We find the State to be correct regarding the standard of review. The

scope of the defendant’s right to appeal does not mean an unlimited review or a de novo trial in

the reviewing court. People v. Harrawood, 66 Ill. App. 3d 163 (1978). The appellate court can

review a case de novo only if the issue being questioned is a question of law. People v.

Chirchirillo, 393 Ill. App. 3d. 916, 921 (2009). However, a reviewing court "will not substitute

[its] judgment for that of the trier of fact." People v. Sutherland, 223 Ill. 2d 187, 242 (2006).

Even with the videotape of the crime and the defendant’s videotaped interrogation, the trial court

saw firsthand the testimony and is in a more superior position than the reviewing court regarding

the testimony and credibility of witnesses.

¶ 35   As to the first element of accountability, the defendant argues that he did not intend to

kill or rob the victim in any way as he was only recording what Jones did. The defendant argues

that he did not know with certainty that Jones was going to hit or rob the victim prior to the


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incident actually happening. The defendant further argues that Jones announced that he was

going to hit the victim and then did so. The defendant argues that the incident should be

considered a spontaneous event because the defendant did not know, before that announcement,

what Jones was going to do. The defense also argues that the defendant had no prior knowledge

of the robbery before it happened.

¶ 36   The State responds that intent may be inferred not only through acts but through

circumstances and surroundings as well. See People v. Perez, 189 Ill. 2d 254, 266 (2000). The

State argues that the defendant agreed to record the incident on Jones' cellular telephone and then

completed that task. Based on this action by the defendant, the State argues, he showed both his

intent and the common design to commit the crimes. The State continues that it was not a

spontaneous event because Jones announced what he was planning to do and the defendant

continued to follow Jones and record the incident.

¶ 37   The defense references Dennis in which our supreme court found the defendant to not be

liable under the accountability theory because the defendant had no knowledge of the principal’s

intent to commit armed robbery when he drove away from the scene of the crime. People v.

Dennis, 181 Ill. 2d 87, 105-06 (1998). However, Dennis is inapposite to the case at hand

because the defendant knew that Jones was going to hit the victim. The defendant knew this

because Jones and Ayala announced that was what they were going to do prior to doing it and the

defendant still took the cellular telephone and stayed with Jones and Ayala while recording the

incident. This is not a spontaneous event. The defendant had every opportunity to leave or not

take the cellular telephone, but he chose to do neither. In fact, the evidence suggests that the

defendant voluntarily took the cellular telephone from Ayala to record the incident since Ayala

suggested that he would be busy hitting the victim "next." As for the robbery, when Jones


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walked up to the victim he asked him for the contents of his pockets. Shortly after hitting the

victim and running a short distance away, Jones came back and took the victim's wallet. It can

be inferred that the defendant knew that Jones wanted to rob the victim when Jones asked the

victim for the contents of his pockets. The defendant had the choice and the ability to leave the

scene but did not. Rather, the defendant stayed and videotaped the attack and watched as Jones

and Ayala took the victim's wallet after knocking the victim to the ground. Therefore, we find

that the defendant had a shared intent to hit and rob the victim consistent with the theory of

accountability.

¶ 38   As to the second element of accountability, the defendant argues that he was not part of

the common plan to kill or rob the victim. The defendant again argues that Jones announcing

that he was going to hit the victim 30 seconds before he did was not enough advance notice to be

considered a plan to commit first-degree murder or robbery and that rather this was a

spontaneous event. The defendant argues, in relation to the robbery charge, that he did not return

with Jones to where the victim lay on the ground when Jones went back to take the victim's

wallet. Therefore, he argues that he could not have been a party to the plan to rob the victim.

¶ 39   The State argues that Jones announcing that he was going to "knock out" the victim is

evidence of a criminal design. The State argues that the defendant did not have to verbally agree

to the plan to be convicted under the theory of accountability. See Perez, 189 Ill. 2d at 267. The

State further argues that it does not matter how long before the incident the plan was developed

because once a plan was formulated the defendant went along with it and therefore shared the

intent of Jones. The State also argues that the defendant's agreeing to record the punching of the

victim, also makes him guilty of robbery which occurred after the victim was punched.




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¶ 40   The defense references Fernandez in which our supreme court found that under the

theory of common design, the defendant was accountable for " 'any criminal act done in

furtherance of the planned and intended act.' " (Emphasis omitted.) People v. Fernandez, 2014

IL 115527, ¶ 16 (quoting People v. Kessler, 57 Ill. 2d 493, 497 (1974)).           However, the

Fernandez case works directly against the defendant’s theory in this case. In Fernandez, the

defendant entered into a plan with his companion, when he did not know was armed, to commit

burglary. Id. ¶ 17. While the companion was committing the burglary he was interrupted

unexpectedly and shot the person who interrupted him. Id. The shooting was not planned with

the defendant prior to the burglary but the court found that the defendant was still responsible

because the shooting was done in furtherance of the burglary. Id. In the case at hand, Jones

announced he was going to hit the victim before actually doing so. Rather than immediately

leaving the scene, the defendant went along with the plan and voluntarily recorded the event with

Jones' cellular telephone. Jones also asked the victim for the contents of his pockets and later,

after the victim had been attacked and was lying on the ground, Jones took the victim’s wallet.

The defendant made no attempt to leave the scene during the entire episode. Based on the

finding in Fernandez, the defendant is responsible for the robbery under a theory of

accountability, because it was done during the intended criminal act. The defendant also argues

that the recording of the incident proved that there was no common plan. The recording shows

that the video function on the cellular telephone was turned on, Jones then announced that he

was going to hit the victim, handed the phone to Ayala, who then also announced that he wanted

to hit the guy next, and then the defendant took the phone. However, the defendant said "just

give it to me" which suggests that he voluntarily took the phone, thereby agreeing to record

Jones and Ayala hitting the victim. Based on the facts of this case, we believe not only was there


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a shared intent but that intent also flowed into a common criminal design or plan to both hit and

rob the victim.

¶ 41   As to the third element of accountability, the defendant argues that he did not aid Jones in

committing first-degree murder or robbery. The defendant argues that he did not take part in or

agree to the crimes. The defendant argues he was only present during the punching of the victim

and he was not near the victim when Jones robbed him. The defendant argues that the recording

of the incident did nothing to aid or abet the conduct that is an element of first-degree murder or

robbery. The defendant states that there is no way to know why Jones wanted a recording of the

event and because of this, there is no way to interpret the recording as aiding and abetting Jones

in the commission of first-degree murder and robbery. The defendant argues that he stood at the

entrance of the alley when Jones went back to the victim and took his wallet. The defendant

argues that he did not help or intend to help in the robbery of the victim and was not part of a

plan to do so.

¶ 42   The State argues that the defendant aided in committing both first-degree murder and

robbery because the defendant agreed to record the punching of the victim. The State further

argues that by agreeing to record the incident, the defendant was aiding in the criminal act. The

State argues that even if the defendant only intended to aid in one criminal act, he is guilty of all

other criminal acts which flowed from or were committed during the completion of the one

planned criminal act, specifically the punching of the victim.

¶ 43   It is clear that the defendant had plenty of time to say "no" and remove himself from the

scene. Rather, he agreed to take Jones' cellular telephone and record the attack. The defendant

asked for the cellular telephone while being aware that Jones intended to record whatever he was

going to do to the victim. Based on Jones turning on the video function of his cellular telephone,


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handing the cellular telephone to his companion and then announcing that he was going to

"knock this mother fucker out," it is pretty clear that he wanted the event to be recorded. The

defendant by accepting the cellular telephone, accepted participation in Jones' plan, and in

helping Jones complete his desired goal of recording himself attacking the victim. The eventual

posting of the video on Facebook further supported Jones' goal. It is also clear that the defendant

was doing more than watching the incident. The defendant was recording the incident on Jones'

cellular telephone. While the defendant himself did not do the act of attacking the victim, he was

clearly part of the plan to do so and actively took part in this plan by recording the incident.

Therefore, we believe that the trial court properly found that the evidence supported the finding

that the defendant aided, abetted, and agreed to being involved in the crimes.

¶ 44   In Taylor, our supreme court set forth several factors to be considered when looking to

convict a defendant under the theory of accountability: if the defendant was present; if the

defendant maintained a close affiliation with the group after the overt act; if the defendant

attaches himself to a group bent on illegal acts; if the defendant failed to report the crime; and if

the defendant fled the scene of the crime. People v. Taylor, 164 Ill. 2d 131, 141 (1995). We find

that Taylor is instructive in analyzing a conviction based on the theory of accountability. Overt

participation by the defendant in the criminal act is not necessary for a finding of accountability.

People v. Ruiz, 94 Ill. 2d 245, 254 (1982); Taylor, 164 Ill. 2d at 140-41; People v. Flynn, 2012 IL

App (1st) 103687, ¶ 23.

¶ 45   In this case, the defendant argues that his mere presence at the scene of the crime is not

enough to make him accountable for the acts of Jones and that Jones did not need the defendant

at the scene to complete the crimes. The State responds that the defendant was more than merely




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present at the scene of the crime because he was recording the incident with Jones' cellular

telephone and the crime may not have happened without the defendant recording the act.

¶ 46   We find that based on the factors in Taylor, the defendant’s presence at the scene of the

crime is just one factor to be considered when determining if the defendant can be convicted

under the accountability theory. Taylor, 164 Ill. 2d at 141. Therefore, the trial court properly

considered the defendant's presence when coming to the conclusion that the defendant is

accountable for the first-degree murder and robbery of the victim.

¶ 47   Second, the defendant argues that he did not have a close affiliation with Jones and did

not continue to be around him after he reached Ayala’s house on the day of the incident. The

defendant also argues that there was no evidence presented that he had any contact with Jones

before the day of the incident and no evidence of any contact with Jones after the day of the

incident. The State responds that the defendant stayed with Jones and Ayala after the crime

occurred at least to the extent that he knew where the wallet was discarded after the robbery.

This means that he kept a close affiliation with Jones and Ayala immediately after the incident.

The State argues that it does not matter if the defendant was friends with Jones prior to the

events in question but that he was with him during the incident and stayed with him afterwards

was enough to create a close affiliation with Jones. The State argues that based on the facts of

the case, the defendant was friends with Ayala and was heading to his house the morning of the

incident and therefore clearly had a close affiliation with Ayala.

¶ 48   We find that the defendant stayed in the presence of both Jones and Ayala after the

punching of the victim and the robbery of the victim. According to the defendant's videotaped

interrogation, he saw Jones discard the victim's wallet sometime after the robbery. According to

Shaeffer's testimony, she found the victim's wallet in the alley of the 6200 block of North


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Campbell, which was a different location than where the attack and robbery occurred. This is

enough to conclude that the defendant stayed with Jones and Ayala after the attack and,

therefore, satisfies the close affiliation factor. Thus, the trial court properly considered the

defendant’s close affiliation with Jones and Ayala in determining he was accountable for first-

degree murder and robbery of the victim.

¶ 49   Third, the defendant argues that there was no evidence presented that the defendant

attached himself to Jones knowing that Jones intended to commit illegal acts. The defendant

argues that he learned of Jones’ intent only seconds before Jones hit the victim and that the State

provided an unreasonable interpretation of the facts which was inconsistent with meeting its

burden of proof. The defendant argues that Parker should be used as a comparison to the case at

hand. The defendant argues that in the Parker case, the court found that the defendant did not do

anything in furtherance of the crime as he stood and watched the lengthy attack on the victim.

People v. Parker, 311 Ill. App. 3d 80, 87 (1999). The defendant argues that the only thing in

common between Jones and himself is that they shared a route walking to their respective

destinations on the date of the incident. Finally, the defendant argues that he never voluntarily

attached himself to a group bent on criminal activities and instead found himself in the presence

of Jones, who acted spontaneously in the commission of criminal acts.

¶ 50   The State responds that past criminal behavior of the people the defendant was with and

their prior criminal records are a factor to be considered under the theory of accountability. The

State argues that the defendant knew of his companions' reputations and that the defendant still

was a friend of Ayala and stayed in the presence of Jones on the date of the incident. The State

argues that Jones announcing that he wanted to "knock the mother fucker out" is enough to show




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that the defendant knew that illegal criminal activity was going to take place and therefore it

showed the defendant knew that the group was intending to commit illegal acts.

¶ 51   We agree that it is important to consider the defendant’s knowledge of his companions at

the time of the incident. The defendant was a friend of Ayala's as evidenced by the fact that he

was on his way to Ayala's house when the attack on the victim occurred. There was also

evidence within the videotaped interrogation that the defendant knew that Jones had recently got

out of juvenile detention. There is no doubt that the defendant knew the reputations of his

companions. Even if the defendant did not know Jones and Ayala very well, when Jones

announced that he was going to "knock out" a person whom he did not know, the defendant must

have known that illegal acts that could cause great bodily harm were going to take place. This

court agrees that where one attaches himself to a group bent on illegal and dangerous acts, he

becomes accountable for these acts. Flynn, 2012 IL App (1st) 103687, ¶ 23. Therefore, the trial

court properly considered this factor in convicting the defendant of first-degree murder and

robbery based on the theory of accountability.

¶ 52   Finally, the State argues that the trial court correctly considered the unrebutted fact that

the defendant did not call the police and instead fled the scene of the crime. This court finds that

the trial court properly considered this factor in convicting the defendant of first-degree murder

and robbery.

¶ 53   This is a case of first impression, which involves the recording of a crime and the

accountability of the person doing the recording. After reviewing all the facts of the case at

hand, the applicable Illinois statutes and supporting case law, this court affirms the trial court's

decision to convict the defendant of first-degree murder and robbery based on the theory of




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accountability and we hold that a rational trier of fact could have found the essential elements of

the crimes beyond a reasonable doubt.

¶ 54      Next, we determine whether the trial court erred in considering evidence of the

nontestifying co-defendant's statements within the context defendant’s videotaped interrogation.

¶ 55      The sixth amendment to the United States Constitution states that the accused has a right

to, "be confronted with the witnesses against him." U.S. Const., amend. VI. The Illinois

Constitution echoes this same right. Ill. Const. 1870, art. I (amended 1994), § 8. The defendant

claims that this right was violated.

¶ 56      The defendant argues that the trial court violated his sixth amendment right to

confrontation by considering the nontestifying co-defendant Jones' statement as substantive

evidence and using this evidence as a basis for the guilty finding against the defendant. The

defendant claims that the trial court improperly considered the line of questioning within the

videotaped interrogation regarding whether co-defendant, Jones, was playing a game.            The

defendant posits that this issue should be subject to de novo review by this court because it is a

question of law. The defendant specifically argues that the only reason the detective knew about

the existence of a game was because of co-defendant, Jones, discussing that information within

his own police interrogation.      The defendant argues that defense counsel objected to the

admission of this line of questioning into evidence and the court in overruling the objection,

opined that the court was versed in the rules of evidence and the permissible use of the evidence

in question. The defense points to the following statements within the court's ruling in arguing

that the court improperly considered whether Jones was playing a game when he attacked the

victim:




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                         "THE COURT: It is a sad travesty that Mr. Delfino Mora

               died because of actions of people who apparently think that what

               they were doing was a game. Well, it wasn’t a game for Mr. Mora

               or his family.

                                              ***

                         THE COURT: It’s a sad game, and I don’t even know that

               you can call it a game, that young men would think this is a way of

               entertainment.

                                               ***

                         THE COURT: And I’ve also considered that there must be

               some deterrence to people who choose violence as some pastime

               event."


The defendant argues that the purpose of admission of the evidence is irrelevant. Specifically,

the defendant argues that by considering the questions about the game the court is violating the

right of the accused to confront the witnesses against him and if there is a reasonable possibility

that the evidence obtained through co-defendant Jones might have contributed to the conviction,

this constitutes a sixth amendment violation. The defendant argues that this was not harmless

error because the court's consideration of Jones' statement shows that it contributed to the

defendant’s conviction. The defendant points out that he never admitted that he was playing a

game and it is clear within his videotaped interrogation that he thought the incident was just a

random occasion and did not believe he was playing a game.

¶ 57   The State responds that Detective Morales' questioning of the defendant in the videotaped

interrogation provided inconsistent responses from the defendant in relation to a possible game.

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The defendant first says it was a random occasion and then says that it was probable that Jones

and Ayala were playing a game. The State argues that when defense counsel objected to the

admission of any evidence related to the statements by Jones, the State responded that the State

was not seeking to admit any such statements as substantive evidence and the court clearly

responded that it knew the difference between evidence that is hearsay and evidence that is used

to give reference to the answers which the defendant gave during questioning. The State argues

that the statements made regarding the game did not directly implicate the defendant. Further,

any references made by the trial court are reasonable inferences based on the evidence. The

State finally argues that even if this court does conclude an error occurred, it is harmless error

because the defendant cannot establish that he was prejudiced by it.

¶ 58   Although the defendant claims that this issue relates to an alleged violation of the

confrontation clause and that we should review this issue under a de novo standard, we find that,

in actuality, this issue pertains to the admissibility of evidence by the court, which we review

under an abuse of discretion standard. "Admissibility of evidence is within the sound discretion

of the trial court, and its ruling will not be reversed unless there has been an abuse of that

discretion." People v. Trice, 217 Ill. App. 3d 967, 977 (1991). A trial judge is presumed to

know the law and only consider evidence that is both admissible and competent. People v.

Williams, 246 Ill. App. 3d 1025, 1033 (1993). Nothing in the record before us suggests or shows

that the trial court considered inadmissible evidence. During the testimony in question, the State

responded to the objection of defense counsel by arguing that the evidence was not being offered

for the truth of the matter asserted and was not used as substantive evidence.         The court

responded that it knew the rules of evidence regarding admissibility, and it would only consider

admissible evidence in its ruling. However, even if the evidence highlighted by the defendant


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was improperly admitted, we find that it was a harmless error. "When a trial error affects a

Federal constitutional right, it is reversible error unless it is harmless beyond a reasonable

doubt." People v. Moore, 229 Ill. App. 3d 66, 77 (1992). To determine whether the error was

harmless, this court must look at, "[i]f the evidence of the defendant's guilt is uncontroverted

and/or so overwhelming that the constitutional violation resulting from its admission at trial did

not have an effect on the verdict, then the error is harmless beyond a reasonable doubt." Id.;

People v. Dixon, 169 Ill. App. 3d 959, 978 (1988). In the case at hand, all elements of the crimes

are met regardless of the mention of whether co-defendant Jones was playing a game. Therefore,

we affirm the decision of the trial court in finding the defendant guilty of first-degree murder and

robbery based on a theory of accountability.

¶ 59   The defendant's final issue is whether the trial court properly considered the defendant’s

background in imposing his sentences.

¶ 60   Both parties agree that the standard of review for sentencing is an abuse of discretion.

The trial court has great discretion to assign an appropriate sentence within the statutory limits

and is entitled to great deference because the trial court has observed the defendant and the

proceedings and has had a better opportunity than the reviewing court to consider all of the

factors. People v. Fern, 189 Ill. 2d 48, 53 (1999). "[O]ur decisions have firmly established that

the imposition of a sentence is a matter of judicial discretion and that, absent an abuse of this

discretion, the sentence of the trial court may not be altered upon review." People v. Perruquet,

68 Ill. 2d 149, 153 (1977).

¶ 61    The Illinois Constitution states that "[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful

citizenship." Ill. Const. 1970, art. I, § 11. Specifically, the Illinois Supreme Court Rules state


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that, "[a]any error, defect, irregularity, or variance which does not affect substantial rights shall

be disregarded." Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).

¶ 62   The Illinois sentencing statute for first-degree murder states that a person shall be

imprisoned for not less than 20 years and not more than 60 years. 730 ILCS 5/5-4.5-20 (West

2012). The Illinois statute for a Class 1 felony states that a person shall be imprisoned for not

less than 4 years and not more than 15 years. 730 ILCS 5/5-4.5-30 (West 2012).

¶ 63   Based on the Illinois statutes for first-degree murder and robbery, the defendant was

properly sentenced within the statutory range, to 22 years for first-degree murder and 8 years for

robbery. 730 ILCS 5/5-4.5-20, 5-4.5-30 (West 2012). The defendant argues that based on his

mitigation evidence that he should have received the statutory minimums. However, the trial

court is allowed broad discretion to assign a sentence within the statutory limits. Fern, 189 Ill.

2d at 53.

¶ 64   The defendant argues that the trial court did not properly take into account the

defendant's lack of a criminal record and his minimal involvement in the crimes. The defendant

argues because of these factors, the minimal sentences should have been applied. The defendant

argues that the court must consider not only the circumstances of the case but also the

defendant's credibility, demeanor, general moral character, mentality, social environment, habits

and age and that the court should consider rehabilitation as an objective of the sentence. People

v. Clark, 374 Ill. App. 3d 50, 68-69 (2007). The defendant argues that the court abused its

discretion by imposing a sentence of 22 years for first-degree murder and 8 years for robbery, to

be served consecutively, and that he should have received the minimum sentence allowable

because of his lack of criminal history, his involvement in the crimes was minimal, and the

potential for rehabilitation is great. The defendant argues that the mitigating testimony from


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family, friends, and his JROTC instructor, his desire to go into the military and be a police

officer or FBI agent, and the evidence that he has continued to work towards his high school

diploma while in custody shows the strong possibility of rehabilitation.

¶ 65   The State responds that the trial court properly considered all relevant factors in

sentencing the defendant within the appropriate statutory range. The State argues that the

defendant was found guilty of first-degree murder, which has a sentencing range of 20 to 60

years and the defendant was sentenced to 22 years. The State argues that the defendant was also

found guilty of robbery, which has a sentencing range of 4 to 15 years and the defendant was

sentenced to 8 years. The State argues that the defendant cannot show that the trial court abused

its discretion in assigning the sentence or improperly considered the aggravating and mitigating

evidence presented. The State argues specifically that the trial court has broad discretion in

imposing a sentence as it has seen all the evidence and testimony first hand and heard the

defendant during the sentencing hearing. People v. Jones, 168 Ill. 2d 367, 373 (1995); Fern, 189

Ill. 2d at 53; People v. La Pointe, 88 Ill. 2d 482, 492-93 (1981). The State argues that the

reviewing court cannot substitute its judgment for that of the trial court just because they would

weigh the factors differently. People v. Alexander, 239 Ill. 2d 205, 213 (2010). In this case, the

trial court specifically noted during sentencing that there appears to be two different sides to the

defendant based on the testimony and that the court cannot completely separate the two for the

purposes of sentencing.     The trial court noted that there has to be consequences for the

defendant’s actions and that he has considered all of the aggravating and mitigating factors, but

there must be deterrence to people in the future not to do what the defendant did. The State

argues that the trial court noted the lack of remorse of the defendant during his conversations

with the police. The State argues that the defendant participated in a cruel, senseless crime on a


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randomly selected victim over the age of 60 and that the sentence that the court imposed is

appropriate for the crime and within the statutory range.

¶ 66   We agree with the State. The trial court sentenced the defendant to 22 years for first-

degree murder, which is at the low end of the statutory range, and we do not find that it was an

abuse of discretion by the trial court. The trial court sentenced the defendant to eight years for

robbery, which is within the statutory range and we do not find that it was an abuse of discretion

by the trial court. The trial court specifically mentioned that it considered all the aggravation and

mitigation evidence. Based on totality of the factors and circumstances, considered by the trial

court, we hold that the court did not abuse its discretion in sentencing the defendant within the

statutory ranges and we therefore affirm the defendant's sentences.

¶ 67   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 68   Affirmed.




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