In re A.A.

236 N.E.3d 601

2023 IL App (1st) 221538

IN RE A.A., a Minor (The People of the State of Illinois, Petitioner-Appellee,

v.A.A., Respondent-Appellant).

No. 1-22-1538

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed June 23, 2023

Appeal from the Circuit Court of Cook County. No. 21 JD 122, Honorable Patricia Mendoza, Judge, presiding.

James E. Chadd, Douglas R. Hoff, and Jonathan Krieger, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Joseph Alexander, and Taylor K. Santell, Assistant State’s Attorneys, of counsel), for the People.

OPINION

PRESIDING JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, minor respondent A.A. was adjudicated delinquent of vehicular hijacking and aggravated battery and was sentenced to 24 months of probation and 30 days of supervision. She appeals, arguing the evidence was insufficient to sustain the verdict because the victim’s identification of her was unreliable. She also claims that, even conceding the State’s facts, her conduct did not constitute a "taking" per the statute. Finally, she contends that the court did not properly credit her for time spent in custody. We affirm her conviction but amend her mittimus to reflect the proper time credit.

¶ 2 BACKGROUND

¶ 3 On January 28, 2021, the State filed a petition for adjudication of wardship against A.A., charging her with vehicular hijacking (720 ILCS 5/18-3 (West 2020)) and aggravated battery (id. § 12-3.05(d)(1)) related to a January 27, 2021, incident. The record shows A.A. spent 56 days in pretrial custody, including 28 days of electronic monitoring.

¶ 4 At A.A.’s bench trial, Kenneth Wolin, 72 years old, testified that on January 27, 2021, at around 10:30 a.m., he was working as a Lyft driver. The weather was clear, but there was snow on the ground. He drove to the 2900 block of West Walton Street in Chicago to pick up a fare. When he arrived, two "girls" entered his vehicle. He saw them "[v]ery briefly" before they entered, but noted they were dressed in "winter clothing." Wolin identified A.A. in court as one of the passengers.

¶ 5 Wolin drove the passengers to a destination near the 1400 block of Douglas Boulevard in Chicago. When he arrived and stopped the vehicle, the "taller" of the two girls, seated directly behind him, reached over the headrest and choked him for one to two minutes. The passengers then instructed Wolin to exit the vehicle, and he complied. While exiting, he noticed one of the passengers enter the driver’s seat of the vehicle. He then saw A.A. exit the vehicle, approach him, and ask for the key fob for the vehicle. Wolin instead gave A.A. the key fob for his girlfriend’s vehicle, which he also happened to have on him at the time. A.A. walked back toward Wolin’s vehicle.

¶ 6 Wolin walked to a nearby school, told a security guard what happened, and asked the guard to call the police. Chicago police officers arrived shortly thereafter and drove Wolin back to his vehicle. Upon arrival, Wolin noticed a cell phone in the back seat that did not belong to him, along with his girlfriend’s key fob. While on scene, Wolin identified A.A. to the officers during a show-up procedure.

¶ 7 Wolin testified as follows regarding the show-up:

"Q. And was this identification procedure done with the minor respondent?

A. Yes.

Q. And where was the minor respondent located as this identification procedure took place?

A. I was asked the first time they were over by the parkway and then the other one was behind the car by another squad car.

Q. So specifically for this minor respondent, where was the minor respondent during the identification procedure?

A. The first one was by the detective that was by the parkway.

Q. And did you identify anybody during that identification procedure?

A. I did.

Q. And was the same person that you identified during that identification procedure the minor respondent that you pointed out in court today?

A. Well, she was the shorter of the two if I recall. One was around five-foot-one. The other one was about five-foot-four and I believe it was the one that was five-foot-one that was talking to the officer, the little bit shorter one. *** and the other one then came later was about five-foot-four and she was—I identified her by the other car.

Q. So was the first person that you identified this minor respondent?

A. I don’t know. I can’t—it looks like her, yes. It does appear to be her. She appears to be the little bit taller one which was by the other car."

¶ 8 Wolin affirmed that, before testifying, he reviewed police-recorded video of the show-up, which accurately depicted the events. The State entered the video. People’s exhibit 1, into evidence, and published it to the court. The video, included in the record on appeal, depicts the interior of a police vehicle. Two voices are audible, one an officer who enters the front seat, and the second apparently from Wolin, origi- nating from the back seat. The officer states that other officers will show Wolin someone and that Wolin should do the best he can. Wolin asks if the officers will show him pictures, to which the officer responds that Wolin will be shown a "person, the actual person." Shortly thereafter, a second officer approaches the driver’s side window and tells the first officer to instruct Wolin to look out of the back window of the police vehicle, which the first officer does. The officer then asks, "can you see her?," and continues, while confirming an inaudible response from Wolin, "that looks like one of them?" The officer then continues, "I don’t know if you can see black pants on, but black puffy coat?," to which Wolin responds in the affirmative.

¶ 9 Wolin confirmed that when he saw A.A. during the identification procedure, she wore the same clothing as when he first picked her up.

¶ 10 On cross-examination, Wolin agreed that both passengers wore black jackets. He agreed that the video did not depict him mentioning either passenger’s height but did not recall if he told officers on scene anything about their height. Wolin believed the passengers were teenagers based on his experience as a high school counselor. The initial ride lasted around 10 to 15 minutes, during which he did not hear any conversation between the passengers. He paid attention to the road during the ride. In response to the question, "So you did not give a description about hair. You did not give a description about weight?," Wolin responded, "They had heavy jackets on. I really couldn’t tell." Defense counsel inquired about A.A.’s alleged location during the show-up, to which Wolin replied, "The one was standing on the street talking to one of the detectives over by the park side and the other one was not initially there. I don’t know where she came back from, but eventually she was there." Wolin stated A.A. was speaking to "one detective" at the time he identified her at the show-up. He did not recall officers saying the person he viewed would likely be the offender.

¶ 11 On redirect, Wolin confirmed that A.A. was the offender who spoke to Wolin on the street after he exited the vehicle. At that time, Wolin could see portions of her face.

¶ 12 Chicago police detective Andrew Kovac testified that he responded to the incident on January 27, 2021, at around 10:50 a.m. There, he met and spoke to Wolin, along with other officers already on the scene. While on the scene, two women approached Kovac and pointed someone out. Kovac identified A.A. in court as the person the women pointed out. Later, at the police station, Kovac learned A.A.’s home address was on the 2900 block of West Walton.

¶ 13 The State rested, and A.A.’s counsel moved for a directed verdict, which the juvenile court denied. A.A. then rested. During closing arguments, the State argued in relevant part that Wolin identified A.A. as the offender who demanded the key fob from him and also emphasized the show-up identification. Defense counsel argued that Wolin’s identification was suspect, in part because he only described the offenders as "taller and shorter," and did not testify clearly regarding whether A.A. was the taller or shorter offender. Counsel also emphasized Wolin’s lack of specificity in the description he provided to the officers. Finally, counsel argued that the video indicated the show-up was overly suggestive.

¶ 14 The court found A.A. liable on both counts and adjudged her delinquent. In so finding, the court noted that the State could have introduced other evidence and found it "frustrating" that it had failed to do so. The court continued that it found A.A. liable of vehicular hijacking because the incident happened in a short period of time, and A.A. was detained near the scene, where Wolin identified her. The court also noted that because A.A. demanded the key fob, "it would be hard to say that there is no common plan or design" with her co-offender regarding the aggravated battery charge, even if A.A. was not the offender who choked Wolin. The court sentenced A.A. to 24 months’ probation and 30 days in the juvenile detention center, which the court stayed. This appeal followed.

¶ 15 ANALYSIS

¶ 16 A.A. raises three arguments on appeal: (1) the evidence was insufficient because Wolin’s identification was unreliable; (2) even conceding the identification, her conduct did not satisfy the taking element of a vehicular hijacking charge; and (3) her mittimus should be corrected to reflect her proper time credit. We first address the sufficiency of the evidence.

[1, 2] ¶ 17 When considering the sufficiency of the evidence, a reviewing court construes the evidence in the light most favorable to the prosecution and determines whether a rational fact finder could have found the defendant guilty beyond a reasonable doubt. People v. Hardman, 2017 IL 121453, ¶ 37, 422 Ill.Dec. 805, 104 N.E.3d 372. The reviewing court will not substitute its judgment for that of...