                                    2013 IL App (1st) 122333
                                                                             FIFTH DIVISION
                                                                           NOVEMBER 8, 2013



No. 1-12-2333

THE PEOPLE OF THE STATE OF ILLINOIS,                        )      Appeal from the
                                                            )      Circuit Court of
                              Plaintiff-Appellee,           )      Cook County.
                                                            )
v.                                                          )      No. 11 CR 10475
                                                            )
SABER DAHEYA,                                               )      Honorable
                                                            )      Larry G. Axelrood,
                              Defendant-Appellant.          )      Judge Presiding.


       PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
       Justices Palmer and Taylor concurred in the judgment and opinion.

                                           OPINION

¶1     Following a bench trial, defendant Saber Daheya was convicted of four counts of

aggravated discharge of a firearm and sentenced to seven years in the Illinois Department of

Corrections. 720 ILCS 5/24-1.2(a)(2) (West 2008). At trial, three eyewitnesses, Jermaine Fox,

Fox’s girlfriend Amanda Padilla, and Ndeyiah Corneh, testified that, on June 14, 2011, they were

traveling in a minivan near Jensen Park in Chicago when they observed defendant running

toward their vehicle aiming a handgun and heard four shots being fired. Fox and Padilla testified

that defendant was a member of the Conservative Vice Lords street gang, which was a hostile

rival to the gang that Fox was associated with, the Simon City Royals.1 Fox and Padilla also

testified that Christian Ramos and Zay Russell were with defendant at the time of the shooting;

       1
        As the trial court noted, the issue of gang membership is an “amorphous” concept, since
the eyewitnesses distinguished between gang membership and gang affiliation, while personally
denying any current association with gangs.
No. 1-12-2333

however, Ramos testified that he was in school that evening and the parties stipulated that

Russell was not present because he was incarcerated. Responding police officer John Geisbush

testified that he recovered four bullet shell casings at the scene of the crime, though he did not

discover any property damage to nearby residences or vehicles.

¶2     A fourth eyewitness, Jessica Palmer, signed a handwritten statement for the police that

stated that she observed defendant running toward the vehicle holding his waistband moments

before she heard gunshots, but she recanted her statement at trial, claiming that she did not

observe defendant and that the police forced her to sign the statement. Assistant State’s Attorney

(ASA) Bob Groebner testified that Palmer provided her signed statement voluntarily and without

coercion.

¶3     On this direct appeal, defendant claims that the State failed to prove him guilty beyond a

reasonable doubt because there is no physical evidence that links defendant to the crime, and that

Fox and Padilla are biased witnesses since they are affiliated with a street gang that is a rival with

defendant’s gang. Defendant also points to inconsistencies in Fox's and Padilla’s testimony to

argue that they are not credible, such as the misidentification of Ramos and Russell at the scene

of the crime. Defendant also argues that Corneh’s testimony alone is not sufficient to affirm the

conviction because she testified that she did not actually observe defendant fire the handgun. For

the following reasons, we affirm defendant’s conviction and sentence.

¶4                                       BACKGROUND

¶5     Prior to trial, defendant was charged with four counts of aggravated discharge of a firearm

and three counts of attempted murder. The State argued in its opening statement at trial that


                                                  2
No. 1-12-2333

defendant fired a handgun at Padilla and Fox’s vehicle because they were affiliated with a rival

gang. The State called seven witnesses, including four eyewitnesses, two police officers, and the

assistant State’s Attorney who obtained the handwritten statement from Palmer. The defense

called Christian Ramos, who testified that he was in school during the shooting, and Detective

Thomas Kolman, who testified that he canvassed the area near the crime scene the day after the

shooting and did not find any property damage or additional witnesses. Defendant exercised his

constitutional right not to testify.

¶6                                     I. Amanda Padilla’s Testimony

¶7      Amanda Padilla testified that she is 18 years old and that Jermaine Fox is her boyfriend.

On the evening of June 14, 2011, Fox was driving a motor vehicle to pick up her friend, Ndeyiah

Corneh, at Jensen Park in Chicago, and Padilla was sitting in the front passenger side of the

vehicle. Fox was driving his grandfather’s minivan southbound on North Lawndale Avenue,

which is a single-lane, one-way street with vehicles parked on each side of the street. Jensen Park

is located on the west side of Lawndale Avenue, between Leland Avenue on the north and

Wilson Avenue on the south. Fox stopped the vehicle halfway down the block, and Corneh

entered the passenger side of the vehicle and sat in the backseat behind Padilla. Fox continued

driving south on Lawndale Avenue and slowed down as they approached the intersection at

Wilson Avenue.

¶8      At that point, Padilla observed a group of people walking along the sidewalk on the west

side of Lawndale Avenue, and she recognized them as defendant, Jessica Palmer, Christian

Ramos, Jerrell Russell, and Zay Russell. Padilla knew defendant because she had previously


                                                    3
No. 1-12-2333

observed him two or three times per week at school, in the neighborhood, and in Jensen Park.

Padilla identified defendant in court. As the group walked near the vehicle, Padilla felt concerned

for her safety because there was hostility between the street gang that people in the group were

members of, the Conservative Vice Lords, and the gang that Fox was associated with, the Simon

City Royals.

¶9     As the vehicle stopped at the stop sign at the intersection of Lawndale and Wilson

Avenues, Padilla observed defendant run toward them, while the rest of the group stayed behind

and watched. Defendant stopped at the corner, removed a black handgun from under his shirt,

and pointed it at the vehicle. Padilla asked Fox to drive away, saying, “Go. He has a gun,” but

Fox had to wait for a jogger that was crossing the intersection on the other side of Wilson

Avenue. Defendant then adjusted the handgun as Fox drove through the intersection. From a

distance “[a]bout a car’s length away,” defendant fired four shots at the vehicle. Padilla had an

unobstructed view of defendant, and it was still daylight.

¶ 10   After defendant fired at the vehicle, people in the park, including defendant, ran in

various directions. Fox continued to drive south on Lawndale Avenue from the intersection as

Padilla called the police on her cellular telephone. Fox then returned to the park, and several

police officers arrived. Padilla exited the vehicle and told the officers what she observed. She

identified defendant as the shooter, and she voluntarily looked up his last name by logging on to

Facebook on her cellular telephone.

¶ 11   On cross-examination, Padilla testified that she was not a member of any street gang, but

admitted that she has been found “delinquent” as a minor for possession of a stolen motor


                                                 4
No. 1-12-2333

vehicle. Padilla testified that, the day after the shooting, she did not tell Detectives Kolman and

Katz2 that defendant was a gang member, or that she had observed the entire group running

toward the corner with defendant, rather than standing behind.

¶ 12   Padilla admitted that, when she warned Fox that defendant had a handgun, Fox was

already facing forward and did not look back as he drove through the intersection. She observed

Corneh ducking her head down. At that moment, Padilla also turned around and faced forward as

the vehicle drove through the intersection. Padilla first testified that she observed the handgun

discharge, but when asked to describe what she observed, she admitted that she did not actually

observe defendant fire the gun but heard the first shot. Padilla observed defendant aiming the

handgun with two hands, but did not observe any bullets strike the vehicle. At the time, Padilla,

Fox, and Corneh did not display gang signs or yell out the window to instigate the shooting.

¶ 13                                II. Jermaine Fox’s Testimony

¶ 14   Jermaine Fox testified that Padilla is his girlfriend. On June 14, 2011, he and Padilla were

traveling in his grandfather’s minivan to pick up Padilla’s friend Corneh at Jensen Park. After

picking up Corneh, Fox drove the vehicle southbound on Lawndale Avenue, a one-way street,

and slowed down as he approached a stop sign at the intersection with Wilson Avenue. Fox

observed a group of people walking south along the sidewalk in Jensen Park, but he did not pay

attention at first to who was in the group and he continued driving.

¶ 15   As Fox stopped the vehicle at the intersection, Padilla warned him that one member of

the group was approaching the vehicle with a gun. Fox turned back to look and he observed


       2
           Detective Katz’s first name does not appear in the appellate record.

                                                  5
No. 1-12-2333

defendant, whom he knew from the neighborhood, running toward them and pointing a black

handgun in the direction of the vehicle. The rest of the group, including Christian Ramos and Zay

Russell, stood behind defendant and screamed at him. Fox identified defendant in court and

explained that he knew defendant from the Albany Park neighborhood. Defendant stopped for a

moment and adjusted his handgun, while a jogger crossed the intersection, preventing Fox from

speeding away. As the jogger crossed Lawndale Avenue, Fox drove through the intersection, and

he observed defendant fire four shots at the vehicle from the distance of “about a car’s length.”

Nothing obstructed Fox’s view of defendant, and he did not observe anyone else with a firearm.

It was still daylight at the time of the shooting, and the windows on the passenger side of the

vehicle were rolled down.

¶ 16   Everyone that was present in the park at the time of the shooting, including defendant, ran

away after defendant fired his handgun. Fox continued to drive away from the intersection while

Padilla called the police on her cellular telephone. The 911 operator told Padilla to return to the

park, so Fox drove back to the intersection of Lawndale and Wilson Avenues, and the police

were already there when they arrived. Fox did not discuss the incident with Padilla and Corneh

before they returned to the park because they were “still in shock.” Fox told the police what he

observed, and Padilla showed defendant’s Facebook page to a police officer to identify

defendant’s last name.

¶ 17   On cross-examination, Fox testified that he was never a “member” of the Simon City

Royals street gang, though he had been “affiliated” with the gang in the past because he was

friends with gang members. Fox testified that he did not remember telling Detectives Kolman


                                                  6
No. 1-12-2333

and Katz that he was a member of the Simon City Royals gang. Though Fox denied a current

gang affiliation, he stated that Padilla was affiliated with the Simon City Royals because she

associated with members of the gang.3 Fox did not display any gang signs or do anything else to

instigate the events, and Jensen Park was considered a neutral territory for children and was not

run by any particular gang.

¶ 18   Fox testified that he was looking straight ahead when he heard the first gunshot, but he

looked back over his shoulder and observed defendant fire the handgun in the direction of the

minivan a second and third time. Fox also described defendant as aiming the handgun at the

vehicle with one hand, not two as Padilla previously testified. Fox did not hear any bullets strike

the vehicle.

¶ 19                              III. Ndeyiah Corneh’s Testimony

¶ 20   Ndeyiah Corneh testified that she is 15 years old and is friends with Padilla. On June 14,

2011, Fox and Padilla picked up Corneh from Jensen Park, and she entered the passenger side of

the vehicle and sat behind Padilla. Fox then drove the vehicle south on Lawndale Avenue and

slowed down because there was a vehicle in front of them stopped at the stop sign at the Wilson

Avenue intersection. Corneh noticed a group of people walking south along the sidewalk on the

west side of Lawndale Avenue, and she recognized one member of the group as a girl named

Corrinn that she knew from school.4 As the vehicle stopped at the intersection, Padilla turned



       3
          The trial court noted that it “did not know what to make” of Fox’s and Padilla’s
testimony concerning gang membership, and as far as it pertained to the charges that defendant
faced, the issue of who belonged to what gang did not “make a difference in the world.”
        4
          Corrinn’s last name does not appear in the appellate record.

                                                 7
No. 1-12-2333

around and stated that defendant was one of the people in the group. Corneh looked back and

observed defendant at the intersection walking towards the vehicle holding a handgun. Corneh

knew defendant from around the park, and she identified him in court.

¶ 21     From a distance of “a car’s length apart,” defendant stood at the end of the sidewalk with

one foot in the street and raised a handgun, aiming it at the vehicle. There was nothing between

Corneh and defendant that obstructed her view, and it was still daylight at the time. Corneh then

ducked her head down and heard three or four gunshots fired in quick succession. Fox drove

from the intersection and Corneh did not raise her head until they were near Sunnyside Avenue,

one city block south. Padilla called the police on her cellular telephone, and they returned to the

park as the police instructed. Corneh identified herself to a police officer, and Padilla told the

police what had happened.

¶ 22     On cross-examination, Corneh testified that Padilla was previously affiliated with the

Simon City Royals and that she did not know if Fox was a member of the gang. No one in the

vehicle displayed gang signs or yelled out of the window to provoke a confrontation with the

group.

¶ 23                               IV. Jessica Palmer’s Testimony

¶ 24     Jessica Palmer testified that she is 15 years old, and on the evening of June 14, 2011, she

was playing basketball with a group of friends in Jensen Park, and never left the park prior to the

shooting. Two of Palmer’s friends, Corrine and Albert, were present in the park that evening.5



         5
        Neither Corrine nor Albert’s last name appears in the appellate record. The name
Corrine may also have been erroneously transcribed as "Corrinn" elsewhere in the record.

                                                  8
No. 1-12-2333

Palmer was playing basketball when she heard gunshots and she immediately ran toward Leland

Avenue. Palmer stopped at the park’s playground and picked up her younger brother, Thomas,6

and the two ran home. Prior to the shooting, there were dozens of people in the park, and Palmer

only knew a few of them. Palmer testified that she did not know defendant, and that she did not

remember if she observed him in the park that evening. Palmer also did not remember observing

Jerrell Russell in the park that evening.

¶ 25   The next day, the police arrested Palmer at school and took her to the 17th District police

station where they questioned her about the shooting. After an hour, the police called Palmer’s

mother, who arrived at the police station and sat next to Palmer while the police questioned her

further. Afterwards, an assistant State’s Attorney interviewed Palmer concerning what she

observed prior to the shooting. Palmer felt threatened and scared, and she and her mother were

crying, so Palmer told the police a false story. The police then wrote down what Palmer said and

forced her to sign the statement.

¶ 26   In her original signed statement to the police, Palmer stated that, while she was playing

basketball in Jensen Park on June 14, 2011, she left the park for a short time with her friend

Corrine, and the two walked to Corrine’s house, which was nearby.7 After Corrine checked in

with her parents, she and Palmer walked back to Jensen Park. When they returned, Palmer

observed her friend Albert speaking with Jerrell, and then the two walked towards the basketball

court. Jerrell then pointed to a gold-colored minivan and shouted, “There they go, right there.”


       6
          Thomas’s last name does not appear in the appellate record.
       7
          At this point, the trial court admonished Palmer for her improper attitude in responding
to the assistant State’s Attorney’s questions.

                                                 9
No. 1-12-2333

Palmer then observed a man, who she knew from the park, run toward the minivan holding his

waistband.8 Palmer lost sight of defendant because there were parked vehicles on Lawndale

obstructing her view. Palmer then heard three gunshots. At trial, Palmer claimed that she did not

remember making any of these statements to the police or the assistant State’s Attorney, other

than that she had heard three gunshots. Her statement concluded that, after the shots were fired,

everyone in the park scattered and Palmer picked up her younger brother from the playground

and ran home.

¶ 27   On cross-examination, Palmer testified that she had met defendant prior to the shooting

and that she had observed him at Jensen Park on prior occasions. Palmer denied knowing Zay

Russell, Christian Ramos, or Ndeyiah Corneh. Palmer testified that Padilla had fought with her

three or four months prior to the shooting, and that she knew that Fox was Padilla’s boyfriend.

Palmer testified that she did not remember which direction she heard the gunshots originate

from, and that she did not remember exactly how many shots were fired. Palmer stated that she

did not observe defendant, or anyone else, run toward the minivan holding his waistband.

¶ 28   Palmer explained that, the day after the shooting, she was arrested at school and

transported to the 17th District police station and placed alone in a holding cell. Two hours later,

an unidentified officer entered the cell and grabbed Palmer and threatened that she would go to

jail if she did not talk. Palmer did not verbally reply to the officer, and he then led Palmer out of

the cell and into an interrogation room, where another unidentified officer joined him in


       8
         Palmer’s statement originally named this individual as defendant, but at some point his
name was crossed out, and Palmer’s initials appear next to the correction. However, Palmer
identified defendant in a photograph as the man that she observed running towards the minivan.

                                                  10
No. 1-12-2333

threatening Palmer with jail if she did not speak. The officers then left Palmer alone in the room

for another two hours, until Palmer’s mother arrived at the police station. Palmer’s mother

entered the room and sat next to Palmer, followed shortly afterward by a third unidentified police

officer. The officer then told Palmer that other witnesses had implicated her in the shooting, and

he questioned Palmer about the events leading up to the shooting. Palmer testified that she then

“made up a story” because she believed that doing so would spare her a trip to jail. Palmer was

then forced to sign a statement that detailed a false account of the shooting, and she was not

given an opportunity to read it.

¶ 29                       V. Police Officer John Geisbush’s Testimony

¶ 30   Officer John Geisbush testified that he has been a police officer for the Chicago police

department for nine years. On the evening of June 14, 2011, Officer Geisbush was patrolling the

area near Jensen Park in a marked police vehicle with his partner, Officer Patricia Ramirez. At

7:15 p.m., Geisbush and his partner received a radio dispatch that gunshots were fired in Jensen

Park, and they drove to the intersection of Lawndale and Wilson. A few minutes after their

arrival, a tan Kia Sedona minivan drove up to the intersection and the occupants exited and

identified themselves as Jermaine Fox, Amanda Padilla, and Ndeyiah Corneh. Geisbush and his

partner first spoke with Padilla, who told them that she observed defendant fire a handgun at the

vehicle. Geisbush next spoke with Fox and Corneh concerning the shooting. All three witnesses

pointed out the northwest corner of the intersection as the place where defendant was standing

when he shot at the vehicle. Geisbush walked over to the area and observed four spent shell




                                                11
No. 1-12-2333

casing lying in the street. Geisbush recovered the shell casings, placed them in a bag, and

inventoried them.

¶ 31   After speaking with the three witnesses, Geisbush sent out a flash message9 describing the

suspect as a black male, 5 feet 7 inches and 130 pounds, named “Saber,” and wearing a black hat,

black shirt, and black jeans. The message also described three other suspects that were in the

group, including Jerrell Russell, Christian Ramos, and Jessica Palmer. The flash message did not

identify Zay Russell as a suspect. At some point, Padilla voluntarily logged on to Facebook on

her cellular telephone and looked up defendant’s last name, which she provided to Geisbush.

¶ 32   On cross-examination, Officer Geisbush testified that his supervisor arrived at the crime

scene and ordered him to recover the shell casings instead of waiting for an evidence technician

to do it. Geisbush surveyed the vehicle and did not find any damage from the shooting, and he

and his partner later canvassed the area but did not find any property damage to nearby vehicles

or residences or any additional eyewitnesses.

¶ 33                       VI. Police Officer Matthew Rogus’s Testimony

¶ 34   Officer Matthew Rogus testified that he has been a Chicago police officer for eight years.

On June 15, 2011, Officer Rogus read a case report at the 17th District police station concerning

the shooting in Jensen Park the previous day. While reading the report, Rogus recognized

defendant from previous encounters in the 17th District, and he knew defendant was a member of

the Conservative Vice Lords gang. Rogus and five other officers then drove to a building on



       9
         A flash message is a broadcast of updated information from the crime scene that is
transmitted to nearby police officers.

                                                12
No. 1-12-2333

North Central Park Avenue where many Conservative Vice Lords were known to congregate.

Rogus had previously observed defendant at the residence several times prior to June 15, 2011,

most recently within the past week.

¶ 35   When Rogus arrived at the location, he observed defendant and Jerrell Russell near the

front of the building smoking cigarettes. As Rogus and his team exited their vehicles, defendant

and Jerrell ran away from the officers to the back of the residence. Rogus yelled, “Stop, police,”

and chased after the suspects. Defendant stopped near the porch and was arrested, and Jerrell was

arrested inside the building soon afterward.

¶ 36   On cross-examination, Rogus testified that the building where he arrested defendant was

Jerrell’s residence. Rogus admitted that he did not know for sure if defendant was a member of a

street gang, but he based his assumption that defendant was a Conservative Vice Lord on who he

had observed defendant associate with in the past. Rogus did not observe any gang tattoos on

defendant’s body.

¶ 37   After Rogus’ testimony, the parties stipulated that, if called to testify, Aimee Stevens

would state that she is a forensic scientist with the Illinois State Police crime lab, and that she is

an expert in firearms identification. Stevens would further testify that she analyzed the four shell

casings recovered from the crime scene and opined that they were all fired from the same .380-

caliber handgun. The State’s next witness, ASA Robert Groebner, was unavailable, so the trial

court allowed the defense to call its first witness out of order.




                                                  13
No. 1-12-2333

¶ 38                              VII. Christian Ramos’s Testimony

¶ 39   Christian Ramos testified that he is 20 years old and that he knew defendant from high

school but he never observed defendant off of school grounds. Ramos had observed Palmer in

Jensen Park on occasion, but he did not know her personally. Ramos met Jerrell once or twice,

but he did not know him very well. Ramos did not know who Corneh was. On June 14, 2011,

Ramos was attending class at Harry S. Truman College in Chicago from 5:30 p.m. until 10 p.m.,

and he was not in Jensen Park that evening.

¶ 40   Sometime afterward, the police stopped Ramos while was driving and told him that

witnesses implicated him in the shooting at Jensen Park on June 14, 2011. Ramos was placed in

custody and transported to the police station where he explained to the officers that he was in

school at the time of the shooting, and he was released five or six hours later.

¶ 41   On cross-examination, Ramos testified that, prior to trial, he initially told the assistant

State’s Attorney that he did not remember whether he was arrested in April 2011 or August 2011,

but he ultimately deduced that the police arrested him on August 7, 2011, though he was not sure

of the exact date. Ramos also did not remember the date of the shooting, but he knew that it

occurred on a Tuesday.10 Ramos admitted that he was found delinquent as a minor of unlawful

use of a weapon in either 2004 or 2005 and he received probation. Ramos was also found

delinquent of aggravated battery in 2008 and he was sentenced as a juvenile to the Illinois

Department of Corrections.




       10
            The date of the shooting, June 14, 2011, did in fact fall on a Tuesday.

                                                  14
No. 1-12-2333

¶ 42   After Ramos’s testimony, the State resumed its case-in-chief and called its final witness,

ASA Bob Groebner.

¶ 43                           VIII. ASA Bob Groebner’s Testimony

¶ 44   ASA Bob Groebner testified that, on June 15, 2011, he was working in the felony review

unit for the Cook County State’s Attorney, and his duties included interviewing witnesses,

victims, and defendants in criminal cases. That day, Groebner was assigned to interview Palmer,

who was identified as a witness to the Jensen Park shooting the previous day. Groebner drove to

the 17th District police station and met with Palmer, who was accompanied by her mother in an

interview room. Groebner introduced himself as a prosecutor, and both Palmer and her mother

consented to having a conversation with him concerning the shooting. After a 20-minute

discussion, Palmer agreed to provide a handwritten statement memorializing what she witnessed

at the park. Groebner asked Palmer questions about what she observed, and he summarized each

of her answers in the statement.

¶ 45   After the interview, Groebner asked Palmer and her mother if they felt they had been

treated fairly by the police, and both responded yes. Palmer was a witness and was never

handcuffed during the interview. Palmer testified that her statement was given freely and

voluntarily and that the police did not threaten her or make any promises to her. In the presence

of her mother, Palmer read the first page of her statement out loud, and she signed the page after

affirming that the information was accurate. Groebner read the rest of the statement out loud, and

Palmer corrected the statement on page three, requesting that defendant’s first name be crossed

out because Palmer did not know him by name and that she knew him from observing him


                                                15
No. 1-12-2333

around the park. Groebner crossed out defendant’s first name, and Palmer, her mother, Groebner,

and Detective Katz placed their initials next to the correction. Palmer then signed each page after

acknowledging that the statements contained therein were accurate. In addition, Groebner,

Palmer’s mother, and Detective Katz signed each individual page. Groebner did not force Palmer

to sign the statement. Groebner identified the handwritten statement in court and it was offered

into evidence without objection.

¶ 46      On cross-examination, Groebner testified that one of the police reports he reviewed prior

to interviewing Palmer indicated that witnesses observed Palmer standing next to the shooter,

though Palmer had been excluded as a suspect by the time Groebner arrived at the police station.

Groebner interviewed Russell11 and took a handwritten statement from Fox, but he did not speak

with Padilla, Corneh, Ramos or Palmer’s friends, Albert and Corrinn. Palmer and her mother

appeared to have a “normal” demeanor at the police station and did not appear to have been

crying.

¶ 47      After Groebner’s testimony, the State rested, and the trial court denied the defense’s

motion for a directed finding.

¶ 48                           IX. Detective Thomas Kolman’s Testimony

¶ 49      The defense’s second witness was Detective Thomas Kolman, who testified that he has

been a Chicago police officer for 18 years. On June 15, 2011, Detectives Kolman and Katz were

assigned to investigate the previous day’s shooting. Defendant, Jerrell, and Palmer were already

in custody when Kolman arrived at the 17th District police station. Kolman first reviewed the


          11
               Groebner does not state whether he is referring to Jerrell Russell or his brother Zay.

                                                      16
No. 1-12-2333

police reports concerning the shooting and then learned that Padilla, Fox, and Corneh were at the

police station and were available to be interviewed. Kolman first spoke with Padilla, who stated

that she observed defendant, Russell,12 Ramos, and Palmer running toward the minivan just

before the shooting, and that Fox was a Simon City Royal gang member at that time. Kolman

next interviewed Fox, and he told Kolman that he also observed defendant, Russell, Ramos, and

Palmer running toward the minivan. Fox told Kolman that he was a Simon City Royal gang

member in the past and still was a current member of the gang. Kolman did not interview Ramos,

or either of Palmer’s friends, Albert or Corrinn. Though Kolman did not meet with Palmer, he

observed her in a processing room and noted that she was not in handcuffs and testified that she

was never placed in a holding cell.

¶ 50   Kolman and Katz recanvassed the area near the crime scene on June 16, 2011, and they

did not locate any additional witnesses or discover property damage to nearby vehicles or

residences as a result of the shooting. Kolman did not perform a gunshot residue test on

defendant to determine if he had recently fired a handgun because too much time had passed

since the shooting. Also, Kolman explained that the shell casings were not sent to the Illinois

State Police crime lab for fingerprint analysis because he is not allowed to do that.

¶ 51   On cross-examination, Kolman testified that he did not present a photo array or physical

lineup to the victims because all three stated that they personally knew defendant.




       12
            Kolman does not state whether Padilla was referring to Jerrell Russell or his brother
Zay.

                                                  17
No. 1-12-2333

¶ 52   Following Kolman’s testimony, the parties stipulated that Zay Russell was in the custody

of the Illinois Department of Corrections on June 14, 2011. Defendant exercised his right not to

testify, and the defense rested.

¶ 53   During closing arguments, the State argued that defendant escalated the feud between the

rival gangs when he fired four shots at the vehicle and that the witnesses were credible because:

(1) they had no bias toward defendant personally; (2) they had little time to fabricate a story after

the shooting; and (3) their testimony was corroborated by Palmer, who initially told the police

that she observed defendant run toward the vehicle shortly before she heard gunshots. The State

claimed that the victims’ testimony was further corroborated by the recovery of four shell casings

at the intersection and that there was no damage discovered because defendant had poor aim.

¶ 54   The defense argued that the State failed to prove defendant guilty beyond a reasonable

doubt because Fox’s and Padilla’s gang affiliations showed that they had a motive to lie about

the shooting. Their credibility was further challenged by the fact that they both testified that

Ramos and Zay Russell were in the group with defendant, but Ramos testified that he was in

school at the time, and the parties stipulated that Zay was incarnated during the shooting. The

defense claimed that the younger Corneh was “playing follow the leader” by changing her story

to fit whatever Fox and Padilla said, and the defense noted that she did not testify that she

actually observed defendant fire the handgun. Further, the defense argued that Palmer recanted

her signed statement because the police threatened her with jail. The defense also claimed that

there was no physical evidence that corroborated the victims’ testimony because: (1) no handgun

was recovered; (2) there was no gunshot residue test performed; and (3) there were no


                                                 18
No. 1-12-2333

fingerprints or DNA linking defendant to the crime. The defense concluded that there would have

been damage to the vehicle had defendant shot at it from such a close distance.

¶ 55   After closing arguments, the trial court stated that it assessed the credibility and demeanor

of the witnesses, and that it relied on each witness’s credibility. The trial court determined that

Fox and Padilla were credible, and that Corneh was the most reliable witness, rejecting the claim

that she fabricated her story to fit Fox’s and Padilla’s accounts of the events. The trial court

discredited Palmer’s testimony and found that she was “an awful witness” who told “absurd,

ridiculous lies” in her testimony to “get out from under the statements that she made earlier.” The

trial court noted that ASA Groebner’s testimony indicated that Palmer had lied in court. The trial

court also determined that Ramos lied about being in school, finding that he “has no idea what

happened, he has no idea when it happened, but knows that he has an alibi for it.” The trial court

concluded that there was “no doubt” that defendant fired a handgun at the vehicle, and it found

defendant guilty of all four counts of aggravated discharge of a firearm. However, the trial court

found defendant not guilty on the three counts of attempted murder, explaining that the State did

not meet the high burden of proof to establish the specific mental state and intent.

¶ 56   The defense filed a posttrial motion for a new trial, claiming that the State did not prove

that defendant fired the handgun in the direction of the vehicle because there was no evidence of

any damage to the vehicle or to nearby property. The trial court denied the motion and stated that

it would not reward defendant for not being “a better shot.”

¶ 57   The trial court held a sentencing hearing, and after hearing factors in aggravation and

mitigation, it sentenced defendant to seven years in the Illinois Department of Corrections, with


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400 days credit for time served, 2 years' mandatory supervised release, and $714 in mandatory

fines, fees, and costs. Defendant appeals his conviction and sentence.

¶ 58                                     ANALYSIS

¶ 59   On appeal, defendant argues that the State did not prove him guilty beyond a reasonable

doubt because Fox and Padilla are biased witnesses since they are affiliated with a rival street

gang. Defendant also points to inconsistencies in Fox’s and Padilla’s testimony to argue that they

are not credible, such as the misidentification of Ramos and Russell at the scene of the crime.

Defendant also argues that Corneh’s testimony alone is not sufficient to affirm the conviction

because she testified that she did not actually observe defendant fire the handgun. Additionally,

defendant claims that there is no physical evidence that links defendant to the crime. For the

following reasons, we find the evidence sufficient for a finding of guilty of aggravated discharge

of a firearm, and we affirm.

¶ 60                                  I. Standard of Review

¶ 61   When a defendant challenges the sufficiency of the evidence, the standard of review is

“ <whether, 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 in original.) People v. Cunningham, 212 Ill. 2d 274, 278 (2004) (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “Under this standard, the reviewing court does not retry the

defendant, and the trier of fact remains responsible for making determinations regarding the

credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to

be drawn from the evidence.” People v. Ross, 229 Ill. 2d 255, 272 (2008). “[T]he fact finder’s


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No. 1-12-2333

decision to accept testimony is entitled to great deference but is not conclusive and does not bind

the reviewing court.” Cunningham, 212 Ill. 2d at 280. “[A] reviewing court will not reverse a

criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to

create a reasonable doubt of the defendant’s guilt.” People v. Rowell, 229 Ill. 2d 82, 98 (2008);

People v. McGee, 398 Ill. App. 3d 789, 793 (2010).

¶ 62   In a bench trial, the trial judge has the responsibility to determine the credibility of

witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any

conflicts in the evidence. People v. Spann, 332 Ill. App. 3d 425, 445 (2002) (citing People v.

Slim, 127 Ill. 2d 302, 307 (1989)). A reviewing court must give the State the benefit of all

reasonable inferences. People v. Wheeler, 226 Ill. 2d 92, 116-17 (2007) (quoting Cunningham,

212 Ill. 2d at 280). The evidence of a single witness is sufficient to convict if the witness is found

to be credible. People v. Smith, 185 Ill. 2d 532, 541 (1992). Testimony may be found insufficient

to convict only where the record evidence compels the conclusion that no reasonable person

could accept it beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280.

¶ 63                              II. Sufficiency of the Evidence

¶ 64   Defendant argues that the State’s evidence was insufficient to convict him of aggravated

discharge of a firearm. “A person commits aggravated discharge of a firearm when he or she

knowingly or intentionally *** [d]ischarges a firearm in the direction of another person or in the

direction of a vehicle he or she knows or reasonably should know to be occupied by a person.”

720 ILCS 5/24-1.2(a)(2) (West 2008); People v. Hardin, 2012 IL App (1st) 100682, ¶ 28. An

essential element to aggravated discharge of a firearm is the defendant’s awareness of the


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No. 1-12-2333

presence of an individual in the direction in which he fires a weapon. People v. Kasp, 352 Ill.

App. 3d 180, 187-88 (2004). However, it is not an inherent element of the offense that the bullets

actually strike the vehicle or that the bullets strike near a window of the vehicle. People v. Ellis,

401 Ill. App. 3d 727, 731 (2010).

¶ 65   In the case at bar, the State proved defendant guilty of aggravated discharge of a firearm

beyond a reasonable doubt, where Padilla, Fox, and Corneh all testified that defendant stood at

the intersection of Lawndale and Wilson Avenues, aimed a handgun at their vehicle, and fired

four shots. Fox in particular stated that he observed the handgun discharge when defendant fired

the second and third shots, and that defendant was aiming at their vehicle as he fired his gun. The

lighting at the intersection was sufficient, where there was still daylight, the vehicle’s windows

were rolled down, and there was nothing obstructing the witnesses’ view of defendant. All three

eyewitnesses were able to identify defendant since they knew him personally before the shooting.

Their testimony was also corroborated by physical evidence, since Officer Geisbush testified that

he recovered four shell casings lying in the northwest corner of the intersection, and the parties

stipulated that forensic scientist Stevens tested the shell casings and found that they were fired

from the same handgun. The trial court assessed the credibility and demeanor of the witnesses

and found that the three eyewitnesses were credible. Ross, 229 Ill. 2d at 272. We cannot say that

the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of

the defendant’s guilt. Rowell, 229 Ill. 2d at 98.

¶ 66   Defendant argues that Fox and Padilla were biased witnesses because they were

associated with a street gang hostile to defendant’s gang and thus were motivated to lie at trial to


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No. 1-12-2333

incriminate defendant. Defendant claims that the trial record shows that Fox and Padilla

fabricated their testimony because they both identified Christian Ramos and Zay Russell as

present in the park on the night of the shooting, despite Ramos’s conflicting testimony that he

was in school that evening, and the parties’ stipulation that Russell was already in custody for an

unrelated offense.

¶ 67   As the trial court stated, the issue of gang association was an “amorphous” concept that

was difficult to delineate in the case at bar. At trial, Fox and Padilla testified that Fox was once

affiliated with the Simon City Royals but he ceased ties with that gang sometime before the

shooting. However, both witnesses denied any current involvement in a street gang, and Corneh

testified that Padilla currently affiliated herself with the Royals because she “hung out” with

members of that gang. Based on this evidence, we cannot say that Fox and Padilla had a clear

motive to lie because neither expressed any current association with a street gang. Though

Corneh explained that Padilla was friends with members of the Royals, this friendship does not

demonstrate that she was then motivated to falsely accuse a rival gang member of committing a

crime. This was especially true of defendant, whom Padilla admitted that she felt no animosity

toward. The trial court stated that it did not know “what to make” of the differing accounts of the

eyewitnesses’ connection to gangs, and that the issue ultimately did not matter in its finding that

Fox, Padilla, and Corneh were all credible. We cannot say that the record evidence compels the

conclusion that no reasonable person could accept their testimony beyond a reasonable doubt.

Cunningham, 212 Ill. 2d at 280.




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No. 1-12-2333

¶ 68   Even if we found that Fox and Padilla held a personal bias against defendant’s gang and

had a motive to lie, we cannot say that their identification of Ramos and Russell at the crime

scene proves that their stories were fabricated. Though Ramos testified that he was in school

during the shooting, he did not remember when the shooting occurred or when he was arrested.

The trial court found that Ramos was not a credible witness, noting that Ramos initially could not

recall if he was arrested in April or August, and that he insisted that he was in school during the

shooting even though he did not remember when the shooting occurred. Also, the

misidentification of Zay Russell is a minor discrepancy in light of the totality of Fox’s and

Padilla’s testimony, and the trial court weighed the inconsistencies and determined that Fox and

Padilla were credible. Spann, 332 Ill. App. 3d at 445.

¶ 69   Furthermore, Fox’s and Padilla’s accounts of the shooting were corroborated by Corneh,

who was not associated with a street gang in any way. As stated, the testimony of a single

eyewitness is sufficient to sustain a conviction. Smith, 185 Ill. 2d at 541. The trial court spoke in

glowing terms about Corneh and found that she was the most credible witness, and it rejected

defendant’s argument that she was playing “follow the leader” to match her story with Fox’s and

Padilla’s account of the shooting. There is nothing in the record to suggest that Corneh was not a

credible witness, and we cannot say that no reasonable person would accept her testimony

beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280.

¶ 70   Regardless of whether Corneh had a motive to lie, defendant argues that her testimony

alone is not sufficient to support his conviction because she testified that she did not actually

observe defendant fire the handgun. In support, defendant cites People v. Hartfield, 266 Ill. App.


                                                 24
No. 1-12-2333

3d 607, 608-09 (1994), which found that the evidence was insufficient to sustain the defendant’s

conviction because an eyewitness heard gunshots but never actually observed the defendant fire

the gun.

¶ 71   However, the State’s evidence was sufficient to support a conviction here because Fox

testified that he actually observed defendant firing the handgun somewhere between the second

and third shots. Moreover, a trial court may draw reasonable inferences from the evidence. Here,

Padilla testified that she observed defendant aiming a handgun at their vehicle and that she turned

to face forward and heard four gunshots. Likewise, Corneh observed defendant aiming the gun at

their vehicle before she ducked down and heard four gunshots. Though Padilla and Corneh did

not actually observe the handgun fire, a reasonable inference may be drawn that defendant was

still aiming the handgun at the vehicle when he fired the four shots shortly after the witnesses

turned away. Wheeler, 226 Ill. 2d at 116-17.

¶ 72   Also, Hartfield is distinguishable because, in that case, the fact that nobody testified that

they observed the defendant fire the gun was crucial since the State failed to present any evidence

whatsoever that the defendant aimed his weapon at a person. Hartfield, 266 Ill. App. 3d at 609.

In the instant case, three eyewitnesses testified that defendant aimed a handgun at their vehicle,

from which a reasonable inference could be drawn that defendant did not change his aim in the

short time between which the witnesses looked away and heard the gunshots. Spann, 332 Ill.

App. 3d at 445.

¶ 73   Defendant additionally argues that the only eyewitness that was not also a victim, Jessica

Palmer, recanted her prior signed statement and testified that she did not observe the shooting.


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No. 1-12-2333

Defendant compares the case at bar to People v. Brown, 303 Ill. App. 3d 949, 965 (1999), where

we reversed the defendant’s murder and attempted murder convictions because the sole

eyewitness recanted his prior statement at trial. Defendant also cites People v. Parker, 234 Ill.

App. 3d 273, 280 (1992), where the defendant’s convictions of murder, armed violence,

attempted murder, and aggravated battery were reversed because three eyewitnesses recanted

their prior statements that implicated the defendant.

¶ 74   However, the trial court found that Palmer was not a credible witness and that she had

lied at trial to “get out from statements that she made earlier.” See Spann, 332 Ill. App. 3d at 445.

Also, Brown and Parker are distinguishable because, in those cases, there was no additional

incriminating evidence aside from the recanted testimony. In Brown, testimony from two of the

three eyewitnesses was found to be inadmissible hearsay, and the third eyewitness recanted his

prior statement at trial. Brown, 303 Ill. App. 3d at 962. On appeal, we reversed the defendant’s

conviction, finding that there was no evidence to support the defendant’s guilt other than a single

witness’s recanted statement. Brown, 303 Ill. App. 3d at 965-66. Likewise in Parker, the

defendant’s convictions were reversed because the only evidence that incriminated the defendant

was the prior statements of three eyewitnesses that were recanted at trial. Parker, 234 Ill. App. 3d

at 280. We found that the “lack of credible eyewitness testimony in favor of the State, combined

with the complete absence of any physical evidence tying defendant to the crime,” prompted us

to find that the evidence presented was insufficient to sustain the defendant's convictions. Parker,

234 Ill. App. 3d at 280. Our rationale in Brown and Parker is not applicable to the instant case




                                                 26
No. 1-12-2333

because, here, there is additional eyewitness testimony and physical evidence sufficient to

convict defendant absent Palmer’s recanted prior statement.

¶ 75   Defendant also claims that his conviction should be reversed because there is no physical

evidence linking him to the crime. Defendant notes that the police did not find a gun or other

incriminating evidence on defendant’s person or at the place of the arrest, and that the police did

not test defendant for gunshot residue or for fingerprints on the shell casings.

¶ 76   However, since the trial court found that Fox, Padilla, and Corneh were credible and their

testimony sufficient to convict defendant, the State was not required to present additional

physical evidence that linked defendant to the shooting to prove defendant’s guilt beyond a

reasonable doubt. People v. Ganter, 56 Ill. App. 3d 316, 321 (1977). This argument is similar to

the argument made in Ganter, where the defendant challenged his murder and armed robbery

convictions arguing that the evidence against him was insufficient because the State did not

present the murder weapon, fingerprint evidence, or any other evidence that the defendant fired

the bullets at the victim. Ganter, 56 Ill. App. 3d at 324. We affirmed the defendant’s conviction

because there was credible eyewitness testimony that was sufficient to convict the defendant.

Ganter, 56 Ill. App. 3d at 324. Likewise, in the instant case, the State presented credible

eyewitness testimony from Fox, Padilla, and Corneh, all of whom testified that they observed

defendant aim a handgun at their vehicle and fire four shots. Though this evidence alone is

sufficient to convict defendant of aggravated discharge of a firearm, the testimony was

corroborated by physical evidence because, at the scene of the crime, Officer Geisbush recovered

four shell casings, all of which forensic scientist Stevens opined were fired from the same gun.


                                                 27
No. 1-12-2333

Thus, the State in the case at bar was not required to present additional physical evidence to

convict defendant. Ganter, 56 Ill. App. 3d at 324.

¶ 77   Further, defendant claims that since the police did not find any property damage to

vehicles or nearby residences, it shows that defendant did not aim at the vehicle because, even if

defendant were a “bad shot,” there would have been some damage from a shooting at such a

close range. Defendant states, without citation to authority, that damage is an important factor in

determining in which direction the handgun was fired, even if it is not an element to the crime of

aggravated discharge of a firearm.

¶ 78   As previously stated, to sustain a conviction, the evidence must show that defendant

knowingly or intentionally fired the gun in the direction of another person or in the direction of

an occupied vehicle (720 ILCS 5/24-1.2(a)(2) (West 2008)), and the State need not prove that the

bullets actually struck the vehicle or that the bullets struck near a window of the vehicle. Ellis,

401 Ill. App. 3d at 731. Poor marksmanship is not an affirmative defense, and it is a question of

fact for the fact finder to determine whether defendant lacked the intent to shoot the vehicle or

whether he was simply unskilled with his weapon and missed his targets. People v. Teague, 2013

IL App (1st) 110349, ¶ 27 (citing People v. Green, 339 Ill. App. 3d 443, 451 (2003), and People

v. Johnson, 331 Ill. App. 3d 239, 250-51 (2002)). While defendant may argue that his failure to

hit the vehicle supported an inference that he did not aim at the vehicle, the trial court was free to

reject that argument and to draw instead the inference that defendant was simply an unskilled

shooter. Teague, 2013 IL App (1st) 110349, ¶ 29. The trial court found defendant was a “bad

shot,” and we will not substitute our judgment for the judgment of the fact finder on appeal.


                                                 28
No. 1-12-2333

People v. Jackson, 232 Ill. 2d 246, 280-81 (2009) (when a defendant challenges the sufficiency

of the evidence on appeal, the reviewing court will not “substitute its judgment for that of the fact

finder”).

¶ 79                                    CONCLUSION

¶ 80   For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 81   Affirmed.




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