                                           2018 IL App (1st) 153147

                                                                                  FIRST DISTRICT
                                                                                SECOND DIVISION
                                                                                 December 18, 2018

     No. 1-15-3147

     THE PEOPLE OF THE STATE OF ILLINOIS                  )      Appeal from the

                                                          )      Circuit Court of

            Plaintiff-Appellee,                           )      Cook County, Illinois.

                                                          )

     v. 	                                                 )      No. 11 CR 21352 

                                                          )

     JOHNNY CASTILLO,                                     )      Honorable

                                                          )      Timothy Joseph Joyce,
            Defendant-Appellant.                          )      Judge Presiding.

            JUSTICE MASON delivered the judgment of the court, with opinion.
            Justices Pucinski and Hyman concurred in the judgment and opinion.

                                                    OPINION

¶1          This first degree murder case arose from defendant Jonny Castillo’s and codefendant

     Christopher Rodriguez’s 1 brutal beating of William Jimenez, who sustained severe brain injuries.

     After the June 26, 1998 beating, Jimenez lived for almost 13 years in a semicomatose state until

     his death on March 26, 2011. After Jimenez died, Castillo and Rodriguez were charged with first

     degree murder and felony murder predicated on robbery. Following a separate but simultaneous

     bench trial, Castillo was convicted of first degree murder and sentenced to 20 years’

     imprisonment. He was acquitted of the felony murder charge. Castillo appeals, claiming that his

     first degree murder conviction should be reduced to involuntary manslaughter because the State

     failed to prove that he kicked and punched Jimenez knowing his conduct created a strong

     probability of death or great bodily harm. Castillo also claims that the trial court improperly

     considered against him Rodriguez’s incriminating statement that they “stomped” Jimenez in

     finding that Castillo had the requisite knowing mental state. We affirm Castillo’s first degree


            1
             Rodriguez is not a party to this appeal.
     1-15-3147


     murder conviction because (i) there was sufficient evidence establishing Castillo’s knowing

     conduct when he severely beat Jimenez and (ii) the trial court only considered admissible

     evidence.

¶2                                            I. Background

¶3          Jacqueline and Jimenez were married in 1984 and lived on Claremont Street in Chicago.

     Jimenez was also known by his nickname, “Rico.” In June 1998, Jimenez was 34 years old, was

     a member of the Latin Kings gang, and had a drinking problem. Castillo was 19 years old, and

     Rodriguez was 17 years old. Castillo was a member of the Gangster Disciples gang, and

     Rodriguez was a member of the Spanish Cobras gang. The Spanish Cobras and Gangster

     Disciples were rival gangs to the Latin Kings.

¶4          Around noon on June 26, 1998, Jacqueline left home to go to work, and Jimenez left at

     the same time to visit his mother, who lived near 24th Street and Spaulding Avenue in Chicago.

¶5          In the evening hours of June 26, 1998, Victor Denis was near the corner of Claremont

     Avenue and Taylor Street hanging out with Rodriguez, Castillo, and Castillo’s father. Denis saw

     Castillo earlier in the day, and Castillo had been drinking. Eventually Jimenez approached the

     group. Jimenez exchanged words with Rodriguez and Castillo about gangs, and the argument got

     heated. Jimenez ran off. Rodriguez and Castillo chased Jimenez and caught up to him about two

     houses down the street. Rodriguez then threw Jimenez to the ground, and Rodriguez and Castillo

     started kicking him. Jimenez was lying on the ground not fighting back. Castillo was kicking

     Jimenez in the abdomen. At some point, Rodriguez and Castillo stopped kicking Jimenez, and

     they ran away. Denis did not see Rodriguez or Castillo go through Jimenez’s pockets, try to take

     anything from him, or put anything in their pockets as they ran away. Denis saw Jimenez lying

     on the ground, not moving, not speaking, and not making any noises; he did not cry out for help.

     Denis did not see Rodriguez, Castillo, or Jimenez with any weapons, such as guns, knives, or


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     bats. Denis was unsure if the beating lasted over a minute.

¶6          Later that evening, James Crejan saw Rodriguez, his nephew, come around the corner of

     Taylor and Claremont moving pretty fast, but not necessarily running. Crejan noticed a little bit

     of blood on Rodriguez’s pants and shoes. Concerned that his nephew might be injured, Crejan

     caught up to Rodriguez and asked if everything was okay. Rodriguez responded, “we f*** him

     up.” Crejan asked, “who” and Rodriguez responded, “just the flake.” Crejan understood “the

     flake” to mean a rival gang member, and Rico was the only rival gang member in the

     neighborhood. Like Rodriguez, Crejan was a member of the Spanish Cobras. Crejan told

     Rodriguez to “go home and wash up.” Rodriguez left, and Crejan went back to the corner.

¶7          Within the next day or two, Crejan asked Rodriguez what had happened on June 26.

     Rodriguez said that he and Castillo were walking down Claremont minding their own business

     when Rico started harassing and intimidating them, throwing up gang signs. Rodriguez and

     Castillo started walking away, but Rico came off the porch and kept following them until he got

     dangerously close, and then a serious fight broke out. Rico ran away, and Rodriguez and Castillo

     caught up to Rico and beat him mostly with their hands, elbows, knees, and feet. Rodriguez said

     they “stomped” Rico, which Crejan interpreted to mean “that he beat him down.”

¶8          Louie Coletta lived at 918 South Claremont with his family. In the later evening hours of

     June 26, 1998, Coletta parked his car and started walking toward his home when he saw a person

     lying on the sidewalk, about 10 feet from his front gate. The individual was not moving. Coletta

     went inside and told his aunt what he saw. Coletta and his aunt shone a light from their porch and

     saw the individual lying on the sidewalk was a man. He was not moving but was making a faint

     noise, a gurgling sound. Coletta’s aunt called 911.

¶9          At about 11:30 p.m., Officer David Striegel of the Chicago Police Department responded

     to the call. When he arrived at the scene, he saw a man lying on the sidewalk who had blood on


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       his head, face, and body. He could not communicate with the man, who was not speaking,

       making any noise, or moving. The man’s pants pockets were pulled inside out. Officer Striegel

       could not determine the man’s identity. He called for an ambulance, and the man was transported

       to Mount Sinai Hospital.

¶ 10           Some time after midnight, Detective Robert Fujara of the Chicago Police Department

       went to Mount Sinai to investigate an unidentified male who was found on the street at 918

       South Claremont. Detective Fujara could not determine the man’s identity because he was in a

       coma.

¶ 11           Even though Jimenez did not come home that night and Jacqueline determined that her

       husband was not at his mother’s house, Jacqueline did not fill out a missing persons report

       because Jimenez on occasion would not come home. After a couple of days, in an attempt to

       locate him, Jacqueline called the police to find out whether Jimenez had been arrested. On June

       30, Jacqueline received a telephone call instructing her to go to Mount Sinai. When Jacqueline

       got to the hospital, she saw Jimenez in a room on a ventilator. Jacqueline contacted Detective

       Fujara and identified her husband as the man found at 918 South Claremont. Detective Fujara

       then attempted to locate the offenders. A few weeks later on July 22, 1998, Jacqueline again

       contacted Detective Fujara and provided names of individuals who had information relating to

       the attack on her husband.

¶ 12           The next day, based on the information Jacqueline gave him, Detective Fujara spoke to

       Michelle Crejan, who was Rodriguez’s legal guardian and Crejan’s sister. Michelle told

       Detective Fujara that Rodriguez committed the battery, and she also gave him Castillo’s name.

       The same day, Detective Fujara questioned Rodriguez and Castillo. Based on his questioning,

       Detective Fujara arrested Castillo at 12:45 p.m. Castillo gave a statement to Assistant State’s

       Attorney Stan Gonsalves at 11:10 p.m. ASA Gonsalves prepared a written summary of Castillo’s


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statement, which Castillo read and signed. Castillo’s summarized statement states in relevant

part:

                     “This statement taken regarding the aggravated battery of William

              Jimenez which occurred on June 26, 1998, at 918 South Claremont at

              approximately 10:00 p.m.

                                                     ***

                     John states that on June 26th, 1998, at around 10:00 o’clock at night, he

              was hanging out on the corner of Taylor and Claremont with his friend

              Christopher Rodriguez. John states that he *** has known Christopher since they

              were little kids. John states that his father was standing on the corner with them

              but that he left with his friends. John states that he—that his friend Christopher is

              a member of the Cobra street gang.

                     John states that while he and Christopher were hanging out, some

              Hispanic guy came over and started talking to Christopher. John states that the

              Hispanic guy started arguing and he had heard the Hispanic guy say that he is a

              Latin King. John states that the Latin Kings and Cobras are rival gangs. John

              states that Christopher continued to argue with the guy about gangs and that the

              Hispanic guy started to run away northbound on Claremont. John states that

              Christopher chased the guy and he followed Christopher. John states that

              Christopher caught up with the Hispanic guy, grabbed him and threw him to the

              ground. John states that this Hispanic guy was lying face down on the ground on

              the sidewalk.

                     John states that Christopher started kicking the Hispanic guy on the head

              numerous times. John states that as Christopher was kicking the guy, he came


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                      over and punched the guy in the sides. John states he also kicked the guy as he

                      was [lying] on the ground.

                             John states that he saw that the Hispanic guy was not moving so he

                      stopped kicking him. John states that Christopher continuing kicking the guy in

                      the head. John states that as Christopher was kicking the guy, he walked away.

                             John states that the Hispanic guy that he and Christopher kicked and

                      punched never had a gun or a knife or any type of weapon on him at any time.”

¶ 13          Rodriguez also gave a statement, which incriminated Castillo. Rodriguez stated that he

       and Castillo got into an argument with Jimenez over gangs. Jimenez ran away, and they chased

       him. After Rodriguez caught up to Jimenez, he tripped Jimenez, who fell facedown on the

       sidewalk. As Jimenez was lying on the sidewalk, Rodriguez kicked Jimenez in the head a

       number of times, and Castillo kicked Jimenez all over his body. Rodriguez and Castillo stopped

       kicking Jimenez and walked away. Jimenez was not moving and was still lying facedown on the

       sidewalk.

¶ 14          Castillo was charged in 1998 with aggravated battery and attempted murder. Castillo was

       found not guilty of attempted murder but guilty of aggravated battery. On October 25, 1999,

       Castillo was sentenced to five years’ imprisonment, which he served.

¶ 15          Jimenez lived for almost 13 years after the beating. During that time, Jimenez was in a

       semicomatose state, had a feeding tube and catheter, and received oxygen from a tracheotomy

       tube. When Jimenez was not hospitalized or in a rehabilitation facility, he lived with Jacqueline,

       who took care of him with help from her family, friends, and visits from a nurse or doctor. In

       March 2011, Jimenez returned to the hospital and died on March 26, 2011. From June 26, 1998,

       until his death, Jimenez never regained consciousness and could not speak with Jacqueline,

       though she believed he communicated by blinking his eyes.


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¶ 16          After Jimenez died, Dr. Adrienne Segovia of the Cook County Medical Examiner’s

       Office performed an autopsy and reviewed a computed tomography scan from June 26, 1998,

       which showed blunt head trauma, extensive scalp swelling, and hematoma. Jimenez also suffered

       from a shearing injury, which arises from blunt head trauma and causes the cells in the brain to

       shear apart, disrupting the communication between the cells in the brain. When Jimenez was

       admitted to Mount Sinai in June 1998, his blood alcohol level was 0.243, more than three times

       the legal limit to drive. Dr. Segovia explained that alcohol consumption can prolong the time that

       it takes for internal bleeding to clot. And to some degree, alcohol would affect an individual’s

       balance, causing him or her to stagger or fall down. Dr. Segovia noted that the emergency room

       report for June 1998 only mentioned swelling and made no mention of any external wounds. Dr.

       Segovia opined that Jimenez died as a result of cerebral injuries due to an assault and the manner

       of death was homicide. According to Dr. Segovia, Jimenez never substantially recovered from

       the injuries he sustained in 1998.

¶ 17          Castillo and Rodriguez were charged with first degree murder and felony murder

       predicated on the robbery of Jimenez. Based on the incriminating statements each made against

       the other, the trial court granted Castillo’s and Rodriguez’s request for separate but simultaneous

       bench trials. In granting the motion, the trial court stated that it would hear the cases

       simultaneously but would “of course be cognizant of what evidence is properly admissible

       against each defendant and which evidence is not admissible against each defendant.” Castillo’s

       and Rodriguez’s separate counsel each examined the State’s witnesses and presented opening

       statements and closing arguments.

¶ 18          During his trial testimony, Crejan suffered a seizure near the end of the State’s direct

       examination, so defense counsel was unable to conduct cross-examination. The parties later

       stipulated that Crejan would have testified that “Rodriguez told him that they were already


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       1-15-3147


       drinking, they had just gotten out of work, they got paid and they were drinking. Mr. Jimenez

       was already drunk and they beat him up.” The trial court asked Castillo’s counsel whether he

       wanted the stipulation considered on behalf of Castillo, and he responded, “No.” The trial court

       stated, “Then it won’t be.” The trial court further asked Castillo’s counsel whether there was any

       cross-examination that Castillo wished to pursue regarding Crejan’s interrupted trial testimony,

       and counsel answered, “No.”

¶ 19          The trial court allowed Detective Fujara to read the written statement that Castillo gave in

       his presence but explicitly stated that Castillo’s statement would not be considered as to

       Rodriguez because of the motion for severance. And when the State moved to admit Castillo’s

       and Rodriguez’s written statements into evidence, the trial court again explicitly stated that each

       defendant’s statements would not be admitted against the other.

¶ 20          At the close of the State’s case, the trial court granted Castillo’s and Rodriguez’s motion

       for a directed finding on the felony murder charge, determining that the State failed to offer

       sufficient evidence demonstrating that codefendants robbed Jimenez at the time of the beating.

¶ 21          During closing arguments, the State reiterated that use of Castillo’s and Rodriguez’s

       written statements would be limited to his own case, respectively. The State argued that the

       beating did not involve just fists but “it was kicking and it was stomping.” The State continued

       that Jimenez never rolled over during the kicking and stomping. The State also referred to

       Rodriguez’s statement that “they f*** up the flake and then later told Mr. Cre[j]an that they

       stomped on the victim.” Rodriguez’s counsel highlighted the absence of external injuries noting

       that “it’s not like they stomped him and there was a lot of blood and it got all over Chris’[s]

       clothing and they are like oh, look, we are really creating some terrible, huge damage here.”

       Rodriguez’s counsel likened the beating to a fight. Castillo’s counsel argued that he was not

       accountable for Rodriguez’s actions and there was no outward manifestation of any injuries to


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       Jimenez when Castillo and Rodriguez beat him. In rebuttal, the State indicated that it would

       probably jump back and forth between both defendants. The State argued that “just because

       Castillo didn’t stomp him in the head, doesn’t mean when he was working with his partner in

       concert to beat this man, that he’s not accountable.” The State also argued that “[t]he stomping,

       the kicking, the injury. It was intentional.”

¶ 22          The trial court found that Castillo and Rodriguez acted in concert and Castillo was

       accountable for Rodriguez’s actions. In rendering its finding, the trial court stated “[b]ecause the

       fact that he was beaten and kicked and stomped, Mr. Rodriguez uses the word stomp when he

       speaks to Mr. Crejan and talks about how we caught him. Which as [the State] pointed out,

       certainly is not indicative or supportive of a fight.” The trial court also noted that Castillo was 19

       and Rodriguez 17 at the time of the beating and that it could “fully appreciate this probably took

       place whatever the duration was, before Mr. Castillo and Mr. Rodriguez could think it through.

       And not thinking it through is part of what’s criminal.” The trial court found both Castillo and

       Rodriguez guilty of first degree murder and sentenced both of them to the minimum 20 years’

       imprisonment. The trial court denied Castillo’s motion for a new trial, in which he argued that

       the evidence was insufficient to prove that he had the requisite mental state to support a

       conviction for first degree murder. Castillo timely appealed.

¶ 23                                            II. Analysis

¶ 24          Castillo first challenges the sufficiency of the evidence, claiming that the State failed to

       prove beyond a reasonable doubt that he knew there was a strong probability of death or great

       bodily harm when he beat Jimenez. Castillo argues that his conviction for first degree murder

       should be reduced to involuntary manslaughter because the evidence demonstrated that he acted

       recklessly and not knowingly.

¶ 25          When reviewing a sufficiency of the evidence claim, the appropriate inquiry is whether,


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        “after viewing the evidence in the light most favorable to the prosecution, any rational trier of

        fact could have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis

        omitted.) Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Gray, 2017 IL 120958, ¶ 35.

        In other words, a reviewing court will reverse a conviction only if the evidence is so improbable

        or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. Gray, 2017 IL

        120958, ¶ 35.

¶ 26           A defendant commits first degree murder when his acts cause death to another and he

        (i) intends to kill or do great bodily harm or knows his acts will cause death, (ii) knows his acts

        create a strong probability of death or great bodily harm, or (iii) attempts or commits a forcible

        felony other than second degree murder. 720 ILCS 5/9-1(a) (West 2012). Accordingly, a

        defendant may commit first degree murder in three different ways: intentionally, knowingly, or

        felony murder. People v. Coats, 2018 IL 121926, ¶ 22. At issue here is whether Castillo

        knowingly committed first degree murder. An individual acts with knowledge when he is

        consciously aware that his conduct is practically certain to cause a particular result. People v.

        McDonald, 2016 IL 118882, ¶ 51 (citing 720 ILCS 5/4-5 (West 2014)). A defendant’s

        knowledge is generally established by circumstantial evidence rather than direct proof. People v.

        DiVincenzo, 183 Ill. 2d 239, 252 (1998), abrogated on other grounds by McDonald, 2016 IL

        118882; People v. Bui, 381 Ill. App. 3d 397, 419 (2008).

¶ 27	          In contrast, a defendant commits involuntary manslaughter when he unintentionally, but

        recklessly, performs an act that is likely to cause death or great bodily harm to another. 720 ILCS

        5/9-3 (West 2012); McDonald, 2016 IL 118882, ¶ 50. Reckless conduct occurs when an

        individual consciously disregards a substantial and unjustifiable risk that a result will follow and

        such disregard is a gross deviation from the standard of care that a reasonable person would

        exercise under the same circumstances. 720 ILCS 5/4-6 (West 2012); McDonald, 2016 IL


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       118882, ¶ 50. 


¶ 28          The defendant’s mental state differentiates first degree murder from involuntary

       manslaughter. McDonald, 2016 IL 118882, ¶ 51. In particular, “[i]nvoluntary manslaughter

       requires a less culpable mental state [recklessness] than first degree murder [intentionally or

       knowingly].” People v. Robinson, 232 Ill. 2d 98, 105 (2008) (citing DiVincenzo, 183 Ill. 2d at

       249). Whether the defendant is guilty of first degree murder or involuntary manslaughter is a

       question for the trier of fact. DiVincenzo, 183 Ill. 2d at 253; People v. Leach, 405 Ill. App. 3d

       297, 312 (2010).

¶ 29          After viewing the evidence in the light most favorable to the State, we find that a rational

       trier of fact could have found that Castillo’s conduct constituted knowing first degree murder. In

       his own words that were memorialized in his written statement, Castillo admitted that he, along

       with Rodriguez, chased Jimenez after Jimenez ran off following a heated exchange of words.

       Castillo watched Rodriguez grab Jimenez and throw him to the ground, where Jimenez lay

       facedown on the sidewalk. Castillo saw Rodriguez kick Jimenez in the head numerous times, and

       Castillo simultaneously punched Jimenez in his side and kicked him as he continued to lie

       facedown on the ground. It was only after Castillo saw that Jimenez was not moving that he

       stopped kicking him, but he again watched as Rodriguez continued to kick Jimenez in the head.

       Denis’s eyewitness account was substantially consistent with Castillo’s written statement. And

       less than two hours after the beating, Coletta and Officer Striegel both observed Jimenez lying in

       the street not moving and not speaking. Likewise, Detective Fujara could not communicate with

       Jimenez the night of the beating because he was in a coma. Based on these witnesses’

       observations, there was sufficient evidence to find that Castillo acted knowingly when he and

       Rodriguez repeatedly beat Jimenez to the point he could not move or speak. Moreover, Castillo’s

       brutal beating of Jimenez was supported by the medical evidence, which established that Jimenez


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       suffered from blunt head trauma and serious brain injuries at the time of the beating. In

       particular, the shearing injury sustained by Jimenez, caused by blunt force sufficient to cause the

       cells of his brain to permanently shear apart, supports the trial court’s finding that Castillo’s

       conduct was intentional.

¶ 30          Castillo urges this court to find that his conduct in beating Jimenez was reckless, but to

       do so would require this court to ignore the evidence that Jimenez never displayed a weapon

       during the heated argument before he ran away, only to be chased by Castillo and Rodriguez,

       thrown to the ground where he lay facedown—defenseless and motionless—while enduring

       repeated punches and kicks by both Castillo and Rodriguez in the head and abdomen. Even after

       Castillo noticed that Jimenez was motionless, he left him on the sidewalk unable to get away and

       watched Rodriguez continue kicking Jimenez in the head. There was no evidence that Jimenez

       ever fought back, in any manner at any time, or even moved after being thrown facedown on the

       sidewalk.

¶ 31          In any event, Castillo claims that bare-handed blows are never sufficient to find the

       requisite knowing mental state for first degree murder. Although a bare-fisted punch would

       generally be insufficient to find knowing first degree murder (People v. Brackett, 117 Ill. 2d 170,

       180 (1987)), Castillo repeatedly punched and kicked Jimenez with his feet while he knew

       Rodriguez was simultaneously and repeatedly kicking Jimenez in the head. See DiVincenzo, 183

       Ill. 2d at 254 (punching and kicking the victim may be sufficient to find the defendant guilty of

       murder); People v. Castillo, 2012 IL App (1st) 110668, ¶ 63 (the defendant’s mental state

       supported a finding of murder and not recklessness where the defendant punched the victim

       several times, knocked him to the ground, and kicked him in the head while he was lying

       motionless). Castillo cannot credibly claim that he did not know simultaneous and repeated kicks

       and punches to Jimenez’s head and body after being thrown to the ground would create a strong


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        probability of death or great bodily harm. 


¶ 32           Certainly Castillo could not have foreseen that Jimenez would unfortunately live in a

        semicomatose state for close to 13 years following the beating, but it was foreseeable and certain

        that Castillo’s and Rodriguez’s coordinated blows to Jimenez’s head and body after he was

        thrown to the ground would naturally cause great bodily harm or death. Likewise, Jimenez’s high

        blood alcohol level on the day of the beating may have inhibited his body’s ability to clot, but the

        medical evidence established that he died from cerebral injuries due to assault, not intoxication.

        And Castillo’s voluntary consumption of alcohol on that day cannot reduce his conviction from

        knowing first degree murder to involuntary manslaughter. 720 ILCS 5/6-3 (West 2012); People

        v. Jackson, 2017 IL App (1st) 142879, ¶ 87 (Mason, J., dissenting).

¶ 33	          Castillo also contends that the trial court misconstrued the record in finding that he beat

        Jimenez unconscious. Castillo claims that Jimenez could not have been unconscious after the

        beating because he was found at 918 South Claremont, while the beating occurred about three

        houses down. From this, Castillo infers that Jimenez must have been conscious and moved from

        one location to the other. But such an inference is not reasonable based on the evidence in the

        record that Jimenez was not moving during the beating, and any inference from the evidence

        must be construed in favor of the State, not Castillo. People v. Baskerville, 2012 IL 111056, ¶ 31.

        Moreover, Denis’s description of where the incident occurred was clearly an approximation

        intended not to identify the exact location of the beating but to demonstrate how far Jimenez ran

        before Rodriguez caught up to him and threw him to the ground. Alternatively, Castillo theorizes

        that Jimenez became unconscious from hitting his head on the sidewalk after Rodriguez threw

        him to the ground. Castillo argues that the evidence supports a finding that Jimenez’s cause of

        death was the blunt force trauma he sustained after Rodriguez threw him to the ground, which he

        had no part of, and not the beating. But Castillo again improperly draws an inference from the


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       evidence in the light most favorable to himself and not the State. Id. And a trial court is not

       required to disregard inferences that flow normally from the evidence or seek out all possible

       explanations consistent with innocence and raise those explanations to a level of reasonable

       doubt. People v. Hardman, 2017 IL 121453, ¶ 37; In re Jonathon C.B., 2011 IL 107750, ¶ 60;

       In re Omar F., 2017 IL App (1st) 171073, ¶ 38; People v. Murphy, 2017 IL App (1st) 142092,

       ¶ 11. In any event, whether Jimenez was unconscious before or after the beating does not alter

       the fact that he and Rodriguez beat Jimenez as he lay motionless on the ground, including

       kicking him in the head, knowing their conduct created a strong probability of death or great

       bodily harm.

¶ 34          Likewise, the lack of extensive external injuries cannot reduce Castillo’s conduct from

       knowing to reckless. See People v. Bishop, 218 Ill. 2d 232, 250 (2006); People v. Johnson, 2015

       IL App (1st) 123249, ¶ 31 (an injury may be inferred based upon circumstantial evidence in light

       of common experience). Castillo completely discredits the readily accepted notion that internal

       injuries can be just as lethal as external injuries, perhaps even more so. And the medical evidence

       was clear that Jimenez suffered severe brain injuries from the beating. Even though no external

       wounds were noted on the emergency room report, Crejan saw blood on Rodriguez’s clothes

       immediately after the beating, and Officer Striegel saw blood on Jimenez’s head, face, and body

       when he arrived at the scene, which gives rise to the reasonable inference that Jimenez visibly

       bled from the beating. Moreover, even after Castillo saw Rodriguez grab and throw Jimenez to

       the ground and start kicking him in the head, he decided to join in the beating by punching

       Jimenez in the abdomen and kicking him, stopping only when he noticed that Jimenez was not

       moving. Because Castillo stopped beating Jimenez when he noticed Jimenez was not moving,

       the reasonable inference was that Castillo knew Jimenez suffered grave injuries and there was no

       need to continue beating him, as the objective to inflict serious bodily harm or death had been


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       achieved.


¶ 35           Castillo similarly argues that the trial court misconstrued the evidence in the record when

       it stated that the beating lasted two minutes even though Denis was unsure if the beating lasted

       over a minute. Regardless of whether the beating lasted one minute or two, the scenario here was

       not a one-on-one fight but two individuals simultaneously delivering repeated blows to another

       who lay facedown on the sidewalk not fighting back or moving. Under this scenario, it cannot be

       reasonably disputed that Castillo knew his conduct would cause great bodily harm or death.

       Moreover, duration of the beating is generally a factor 2 courts consider when deciding whether a

       defendant’s conduct was reckless, but consideration of that factor is not dispositive where, as

       here, the nature of the killing, shown by either multiple wounds or the victim’s defenselessness,

       demonstrated that the defendant did not act recklessly. DiVincenzo, 183 Ill. 2d at 251.

¶ 36           Castillo further contends that the trial court misapplied the required mental state in

       finding knowing first degree murder as demonstrated by its comment that “I can fully appreciate

       this probably took place whatever the duration was, before Mr. Castillo and Mr. Rodriguez could

       think it through. And not thinking things through is part of what’s criminal.” Castillo interprets

       the trial court’s comment to mean that he acted recklessly by “not thinking things through.” But

       Castillo misconstrues the trial court’s statement and reads it in isolation. The trial court

       continued by stating that Castillo’s conduct in kicking Jimenez “was the result of purposeful

       actions [engineered] by an intent to inflict great bodily harm. Which is precisely what 9-1(a)(2)

       of the criminal code [(knowing murder)] *** speaks to.” When the trial court’s findings are read

       in totality, it is clear that the court had in mind the required mental state for knowing first degree

       murder and correctly determined that Castillo did not act recklessly. And there is no merit to

               2
                The factors courts generally consider when deciding whether a defendant’s conduct was reckless
       include (i) the disparity in size between the defendant and the victim, (ii) the brutality and duration of the
       beating, and the severity of the victim’s injuries, and (iii) whether the defendant used his or her bare fists
       or a weapon. DiVincenzo, 183 Ill. 2d at 251.

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       Castillo’s claim that he and Rodriguez were teenagers (19 and 17 years old, respectively)

       provoked by 34-year-old Jimenez when Jimenez started throwing up gang signs and got

       dangerously close to them. Mere words and gestures are insufficient to constitute serious

       provocation. People v. Blackwell, 171 Ill. 2d 338, 358 (1996); People v. Camacho, 2016 IL App

       (1st) 140604, ¶ 37.

¶ 37          Castillo faults the State for not distinguishing People v. Lengyel, 2015 IL App (1st)

       131022, and People v. Jones, 404 Ill. App. 3d 734 (2010), which he cited as support for finding

       his conduct was reckless and not knowing. But the State considered Castillo’s reliance on those

       cases misplaced because, unlike here, the medical evidence in Lengyel and Jones showed that the

       beatings were not the cause of death, and the defendants could not have known that their conduct

       would have resulted in death. We agree with the State that Lengyel and Jones provide no support

       for Castillo’s claim that his conduct was merely reckless. See Lengyel, 2015 IL App (1st)

       131022, ¶¶ 27, 64 (blunt force trauma to victim’s head was not the definitive cause of the

       victim’s death, and the defendant acted recklessly when he disregarded the risk that his punches

       could spike victim’s blood pressure leading to a stroke and death); Jones, 404 Ill. App. 3d at 747

       (injuries from the fight not the cause of victim’s death, and a lay person would not know that

       placing a foot on the soft tissue area of the neck applying 4.4 pounds of pressure to hold the

       victim down would lead to death).

¶ 38          In sum, the nature of the injuries that led to Jimenez’s death belies any suggestion that

       Castillo’s actions were reckless and not knowing, and the evidence demonstrating Castillo’s

       knowing conduct was not so improbable, unsatisfactory, or inconclusive as to leave a reasonable

       doubt regarding his guilt. Consequently, the evidence was sufficient to prove Castillo guilty

       beyond a reasonable doubt of first degree murder.

¶ 39          Castillo also claims that the trial court improperly considered Rodriguez’s incriminating


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        statement, repeated by Crejan, that Rodriguez and Castillo “stomped” Jimenez and used that

        statement against Castillo to find that he knowingly committed first degree murder.

¶ 40           Castillo concedes that he forfeited review of this claim of error, but he urges review of

        his unpreserved claim under the plain error doctrine. The plain error doctrine allows a reviewing

        court to consider an unpreserved error when a clear and obvious error has occurred and either

        (i) the evidence was closely balanced or (ii) the error was so serious that it affected the fairness

        of the defendant’s trial and challenged the integrity of the judicial process. People v. Staake,

        2017 IL 121755, ¶ 31 (citing People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), citing People v.

        Herron, 215 Il. 2d 167, 186-87 (2005)). But the predicate to a plain error analysis is the finding

        that an error occurred. Id. ¶ 33; People v. Walker, 232 Ill. 2d 113, 124 (2009); People v. Space,

        2018 IL App (1st) 150922, ¶ 63. We need not engage in a plain error analysis here because no

        error occurred.

¶ 41	          Castillo’s and Rodriguez’s basis for seeking severance was a Bruton violation. See

        Bruton v. United States, 391 U.S. 123, 135-36 (1968). During a joint trial, Bruton prohibits the

        prosecution’s use of a statement made by a nontestifying codefendant that expressly implicates

        the other defendant in the crime. People v. Ousley, 235 Ill. 2d 299, 303 (2009) (citing Bruton,

        391 U.S. at 137). Importantly, Bruton involved a jury, and not a bench trial, and a jury “cannot

        be expected to consider an inculpatory statement in determining the guilt or innocence of the

        declarant, then ignore that statement in determining the guilt or innocence of the declarant’s

        codefendants.” Id. at 310. But the same cannot be said in a bench trial where the presumption

        exists that a judge has considered only competent and proper evidence. People v. Schmitt, 131

        Ill. 2d 128, 138 (1989). Indeed, when a judge in a bench trial is confronted with an incriminating

        statement by one codefendant in a separate but simultaneous bench trial, the court is presumed

        “capable of compartmentalizing its consideration of evidence.” Id. at 137.


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¶ 42          There is no basis here to find that the experienced trial judge improperly considered

       Rodriguez’s incriminating statement against Castillo. When the trial court granted the severance,

       it clearly articulated that it would hear the cases simultaneously “but will of course be cognizant

       of what evidence is properly admissible against each defendant and which evidence is not

       admissible against each defendant.” The trial court’s ability to compartmentalize its

       consideration of the evidence was demonstrated when it repeatedly stated that each defendant’s

       incriminating statements would not be used against the other. Likewise, the trial court

       specifically asked Castillo’s attorney whether Crejan’s stipulation would be admitted against

       Castillo, which further demonstrated its ability to separate the evidence. We refuse to presume

       that the trial judge simply forgot during Castillo’s trial, which spanned over portions of three

       days, that he was conducting a separate but simultaneous trial, particularly given his and the

       State’s repeated acknowledgement that certain evidence was only admissible against one

       defendant but not the other.

¶ 43          Contrary to Castillo’s assertion, the trial court did not explicitly state that it considered

       Crejan’s inadmissible statement as a basis to find Castillo guilty of first degree murder. See

       People v. Williams, 246 Ill. App. 3d 1025, 1033 (1993) (if the trial court explicitly states that it

       will not consider inadmissible evidence in a joint trial, and the record supports the judge’s

       admonition, the defendant’s claim that he was denied a fair trial must fail). Based on the record,

       the trial court’s ultimate characterization of Castillo’s conduct as “stomping” Jimenez was a fair

       characterization of the evidence. The mere fact that Rodriguez’s statement to Crejan used the

       same relatively common word does not, standing alone, support the inference that the trial court

       considered this statement against Castillo. Consequently, nothing in the record demonstrates that

       the trial court improperly relied upon the inadmissible incriminating statement to find Castillo

       guilty of knowing first degree murder. Because there was no error, there can be no plain error.


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       Walker, 232 Ill. 2d at 124; People v. Smith, 372 Ill. App. 3d 179, 181 (2007). Castillo’s related

       claim that his trial counsel was ineffective because she did not object to the trial court’s alleged

       consideration of Rodriguez’s statement fails for the same reason. People v. Polk, 2014 IL App

       (1st) 122017, ¶ 29.

¶ 44          For the foregoing reasons, we affirm Castillo’s conviction for first degree murder.

¶ 45          Affirmed.




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