2021 IL App (1st) 182595-U

No. 1-18-2595 

Order filed March 31, 2021

Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

 v. 

DAMIEN HARRIS,

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Cook County.

No. 15 C5 50594

Honorable 

Colleen A. Hyland, 

Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court.

Justices Lampkin and Reyes concurred in the judgment. 

ORDER

¶ 1 Held: Defendant’s conviction for theft of property valued between $100,000 and 

$500,000 is affirmed over his claims that the court admitted improper hearsay 

evidence and that the evidence was insufficient to convict him of the crime. 

¶ 2 Following a bench trial, defendant Damien Harris was found guilty of two counts of theft 

of property valued between $100,000 and $500,000 (720 ILCS 5/16-1(a)(1), (b)(6) (West 2014)). 

The court merged the counts and sentenced defendant to eight years’ imprisonment. He appeals, 
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arguing that the trial court erred by admitting hearsay testimony regarding the value of the 

property, and that the evidence was insufficient to establish the value of the property. We affirm. 

¶ 3 Defendant was charged by information with two counts of theft of property valued between 

$100,000 and $500,000, specifically flatbed trailers containing four crane parts called

counterweights, following an incident on July 19, 2015. Count I alleged that defendant intended 

to permanently deprive the owner of the use or benefit of the property, while count II alleged that 

defendant knowingly used, concealed, or abandoned the property so as to permanently deprive the 

owner of its use or benefit.

¶ 4 At trial, Judith Mooncotch testified that in July 2015, she was the president of LaGrange 

Crane Service (LaGrange), a crane rental company, where she had worked since 1999. On July 19, 

2015, LaGrange’s lot contained functioning video surveillance equipment. Mooncotch identified 

People’s Exhibit No. 1 as a DVD containing accurate footage from that date, which the State

offered into evidence and then published. During the playback, Mooncotch testified that it depicted 

someone removing a flatbed trailer containing two counterweights from the yard around 8:12 a.m., 

with two more counterweights taken in the same manner around 11:25 a.m. Mooncotch testified

that counterweights are made from steel, forged for a specific crane, and are not interchangeable. 

She did not know defendant and did not give him permission to enter the LaGrange lot. 

¶ 5 The video, which is included in the record on appeal and is timestamped, depicts a red 

tractor trailer cab enter the lot at approximately 8:04 a.m. At around 8:12 a.m., the cab was shown 

connected to a trailer bed containing two counterweights exiting the lot. At approximately 11:25 

a.m., the cab returns and again drives away with another trailer bed containing two additional 

counterweights. 
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¶ 6 The State introduced People’s Exhibit No. 13, which Mooncotch identified as a quote to 

replace the counterweights from a company known as Walter Payton Power Equipment (WPPE).

Mooncotch testified that LaGrange purchased the cranes to which the counterweights belonged 

from WPPE, and that one crane costs $4.5 million. She believed the counterweights were worth 

“[j]ust under $200,000” based on a “piece of paper” that she received as a quote because she “asked 

an authorized dealer what it would cost to replace them.” She further explained that “[a]ll my 

knowledge” about the cost of the counterweights reflected information from “the dealer or the 

crane manufacturer.” The court overruled defense counsel’s hearsay objection to Mooncotch’s 

testimony about the counterweights’ value because all of the testimony concerned replacement 

value only. We find that the trial court erred in overruling this objection and in allowing the exhibit 

into evidence at that point in time, but that error was harmless because later evidence properly 

depicted the value of the property taken.

¶ 7 Matthew Musick, a crane operator at LaGrange, testified that on July 19, 2015, he arrived 

at work and noticed that the chain on the front gate was cut. The State again played portions of 

People’s Exhibit No. 1, and Musick testified that the footage at 7:44 a.m. showed an individual he 

did not recognize cut the chain with bolt cutters. The video was consistent with Musick’s 

testimony. 

¶ 8 Sergeant Jeff Keilman of the Hodgkins Police Department testified that on July 19, 2015,

he went to LaGrange to investigate the theft. He spoke to Mooncotch and Musick, recovered 

fingerprints, photographed the scene, and viewed the surveillance video, then disseminated a flier 

to local law enforcement containing still images from the video of the individual who cut the gate.
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On July 20, 2015, a police officer from the Chicago Police Department contacted Keilman and 

directed him to South Shore Recycling (South Shore) in Chicago.

¶ 9 At South Shore, Keilman met Sergeant Scaberti

1 of the Chicago Police Department and 

Jeff Handelman, the owner of South Shore. Scaberti and Handleman were with another man, whom

Keilman identified in court as defendant. Keilman also observed one of the trailer beds with two

counterweights on it. Keilman arrested defendant, placed him inside the police vehicle, and 

Mirandized him. Defendant then told him that he was selling the counterweights and had more at 

a location on the 8200 block of South Chicago Avenue in Chicago. Keilman went to the location 

and recovered the other trailer bed and two counterweights. On cross-examination, Keilman

testified that defendant’s statements in the vehicle were not recorded or memorialized.

¶ 10 Handelman testified that on July 20, 2015, defendant arrived at South Shore with 

counterweights that Handelman agreed were “newer looking,” which concerned him because

“scrap is usually a little bit more worn.” As a result, he called the police.

¶ 11 David Wisnieski, director of parts and operations for WPPE, testified that WPPE’s 

business was to “sell cranes, equipment, and parts for various manufacturers.” WPPE provided 

Mooncotch with a quote to replace the counterweights. WPPE maintains records of any quotes it 

provides in the normal course of its business. The quoted price was for the “replacement 

component” itself, and did not include labor. Wisnieski testified that one of his employees received 

the prices for the counterweights from the manufacturer, and then included the prices in the quote

given to Mooncotch. 

1 Scaberti’s first name does not appear in the report of proceedings. 
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¶ 12 The State showed People’s Exhibit No. 13, which contained the quote, to Wisnieski, and

then asked for the cost of the replacement value of the counterweights, to which defense counsel 

objected. The trial court sustained the objection, and the court stated that the State could “lay a 

foundation as to [Wisnieski’s] knowledge of the value of the counterweights.” Wisnieski then 

testified that the quote reflected the fair market value of the counterweights, which would be the 

manufacturer’s suggested sell price at the time. He further explained that counterweights do not 

lose value, were an “extremely valuable part of the crane,” and that the crane could not function 

without them. Wisnieski testified that the cost to replace the particular counterweights was 

$194,000, including tax. One was for $72,572.68, and the other was for $105,952.40. After 

viewing People’s Exhibit No. 13, Wisnieski testified that the total value of the counterweights, 

including tax, was $194,000. Counterweights were typically not purchased separately from the 

crane. He believed there “would not be any wear and tear” on the counterweights over the course 

of normal operations.

¶ 13 On cross-examination, Wisnieski testified that no one from WPPE inspected the 

counterweights in July 2015. WPPE sometimes sells used components, including counterweights, 

though counterweights are often not available unless a crane is salvaged or totaled. He agreed that 

an employee of WPPE generated the document containing the replacement quote, but the 

counterweight prices therein reflected the manufacturer’s replacement cost.

¶ 14 At the conclusion of Wisnieski’s testimony, defense counsel objected to the admission of

the replacement quote on the grounds that the State did not lay the foundation to qualify it as a 

business record because it was not “made near the time by a person with knowledge.” The court

overruled the objection and stated that replacement costs is not the issue in this case. 
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¶ 15 The State rested, and defense counsel moved for a directed finding, arguing that the State 

had not established the fair cash market value for the counterweights at the time of the taking. In 

response, the State referenced the replacement quote and Wisnieski’s testimony that the 

counterweights do not depreciate in value. The court denied the motion, the defense rested, and 

the parties adopted their arguments from the motion for a directed finding as their closing 

arguments. 

¶ 16 The court found defendant guilty of counts I and II for theft of property valued between

$100,000 and $500,000. In so finding, the court explained that, “The main question *** is has the 

State proven that those counterweights were over the value of $100,000.” The court ruled that the 

State proved this element, citing Mooncotch’s testimony that the counterweights were valued just 

under $200,000, which she based on WPPE’s quote to replace them, and Wisnieski’s testimony 

that WPPE quoted LaGrange “the manufacturer’s suggested sale price” of $194,000. The court 

also referenced People v. Heinz, 87 Ill. App. 3d 1 (1980), for the proposition that an item’s “fair 

cash market value” may reflect “the price placed by *** retail merchants.”

¶ 17 At a proceeding on June 13, 2018, the court permitted defendant to proceed pro se. 

Defendant then filed a pro se motion for a new trial, which he later amended. On November 30, 

2018, the court conducted a preliminary inquiry on defendant’s posttrial ineffective assistance of 

counsel claim under People v. Krankel, 102 Ill. 2d 181 (1984), and then denied defendant’s

amended motion for a new trial. The Krankel issue is not a part of this appeal. At a later proceeding, 

the court merged count II into count I for theft of property valued between $100,000 and $500,000

and sentenced defendant to eight years’ imprisonment on count I. Defendant did not file a motion 

to reconsider sentence. 
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¶ 18 On appeal, defendant first argues that his conviction should be reversed because the only 

evidence at trial establishing the value of the counterweights was inadmissible hearsay.2

¶ 19 Hearsay is an out-of-court statement offered for the truth of the matter asserted, and is 

generally inadmissible unless an exception applies. People v. Olinger, 176 Ill. 2d 326, 357 (1997). 

“Hearsay included within hearsay is not excluded under the hearsay rule if each part of the 

combined statements conforms with an exception to the hearsay rule provided” in the Illinois Rules 

of Evidence. Ill. R. Evid. 805 (eff. Jan. 1, 2011).

¶ 20 Hearsay evidence is admissible under the exception for records of regularly conducted 

activity, or business records, where the record was created at or near the time of the activity by “a 

person with knowledge,” “kept in the course of a regularly conducted business activity,” and if it 

was the “regular practice of that business activity” to make the record. Ill. R. Evid. 803(6) (eff. 

Sept. 28, 2018). Where a business receives information from a third party, that information can be 

admitted as part of the business’s own records under Rule 803(6) on a showing that the business 

received the information in its normal course of business, integrated the information, and used it 

in its day-to-day activities. See Solis v. BASF Corp., 2012 IL App (1st) 110875, ¶ 86; see also

Argueta v. Baltimore & Ohio Chicago Terminal R.R. Co., 224 Ill. App. 3d 11, 21 (1991) (“Where 

a third party is authorized by a business to generate the record at issue, the record is of no use to 

the business unless it is accurate and, therefore, the record bears sufficient indicia of reliability to 

2 Although trial counsel made a contemporaneous hearsay objection in response to the testimony 

regarding the value of the counterweights, defendant’s pro se posttrial motion and amended motion 

generally alleged the State did not establish the value of the counterweights without reference to the hearsay 

issue. See People v. Hillier, 237 Ill. 2d 539, 544 (2010) (“to preserve a claim of sentencing error, both a 

contemporaneous objection and a written postsentencing motion raising the issue are required”). The State 

does not argue, however, that defendant forfeited this claim, and has therefore forfeited any forfeiture 

argument. See People v. Williams, 193 Ill. 2d 306, 347-48 (2000).
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qualify as a business record under the hearsay rule.”). We review the evidentiary decisions of the 

lower court for abuse of discretion. People v. Chambers, 2016 IL 117911, ¶ 75. An abuse of 

discretion occurs when a trial court’s decision is arbitrary, fanciful, unreasonable, or where no 

reasonable person would adopt the court’s view. Horlacher v. Cohen, 2017 IL App (1st) 162712, 

¶ 81. 

¶ 21 In the case at bar, the trial court properly admitted the quote for the replacement cost for 

the counterweights on Wisnieski’s testimony that WPPE generated the quote and that the quote 

came from the manufacturer as its price for new counterweights. There was testimony to support 

the fact that the quote is the type of record kept in the ordinary course of business and that it was 

the business of WPPE to obtain such quotes in its regular practice. As a result, this qualifies as a 

business record exception to the hearsay rule. Ill. R. Evid. 803(6) (eff. Sept. 28, 2018).

¶ 22 Defendant’s next argument is that the evidence is insufficient to establish the value of the 

counterweights even if the manufacturer’s replacement costs were admissible because there was 

no evidence establishing the counterweight’s fair cash market value. Although normally 

replacement cost is not the fair cash market value of a product, in this case, there is a narrow 

exception to that rule. Replacement cost is normally much higher than the fair cash market value. 

Benford v. Everett Commons, LLC, 2014 IL App (1st) 130314, ¶ 32. In the case at bar, the unrefuted 

testimony of Wisniecki showed that counterweights do not depreciate in value and that their 

condition does not diminish their value over time. In addition, there was testimony that illustrated 

that these counterweights appeared and looked like they were new. Thus, the price for new 

counterweights would not be any different than the price for the counterweights that were taken 
No. 1-18-2595 

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here. Therefore, under the narrow exception to the general rule, the replacement costs here would 

be the fair cash market value of the counterweights. 

¶ 23 Defendant argues pursuant to People v. McCullough, 2015 IL App (2d) 121364, that 

because the third-party manufacturer provided the prices to WPPE, the prices constitute double 

hearsay and were inadmissible without their own exception. 

¶ 24 In McCullough, the defendant sought to show that a particular individual made a collect 

call through telephone record evidence, generated by an operator, who included the name the 

individual making the collect call provided her. The reviewing court decided that the trial court 

did not err in excluding the evidence, as the name the operator recorded was provided by the thirdparty caller, an “outsider not acting in the regular course of the telephone company’s business.” 

McCullough, 2015 IL App (2d) 121364, ¶ 122. As the McCullough court further explained, double 

hearsay “is excused by Rule 803(6) only where both the source and the recorder of the information 

*** are acting in the regular course of business. [Citation.].” McCullough, 2015 IL App (2d) 

121364, ¶ 121. Where the “source of the information is an outsider,” the “statement must fall 

within another hearsay exception to be admissible.” McCullough, 2015 IL App (2d) 121364, ¶ 121

(citing Wilson v. Zapata Off-Shore Co., 939 F.2d 260, 271 (5th Cir. 1991) (“the outsider’s 

statement must fall within another hearsay exception to be admissible because it does not have the 

presumption of accuracy that statements made during the course of regular business have”)).

¶ 25 McCullough did not address the exception for third-party information received by a 

business that then integrates the information and uses in its daily operation. Moreover, the case at

bar is more analogous to Solis and Argueta than McCullough. In Solis, the trial court admitted

letters from third-party doctors sent to a patient’s treating doctor. Solis, 2012 IL App (1st) 110875, 
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¶ 86. The treating doctor testified at trial, and provided a foundation for the letters. Solis, 2012 IL 

App (1st) 110875, ¶ 86. This court reasoned that though the third-party doctors had not treated the 

patient in the course of the treating doctor’s practice, the treating doctor had incorporated those 

letters into his course of treatment, and thus could establish the foundation for the letters. Solis, 

2012 IL App (1st) 110875, ¶ 86. Similarly, in Argueta, this court ruled that the trial court erred by 

excluding third-party reports commissioned by the defendant railroad, where the railroad 

established that it relied on the accuracy of the reports, and requested and maintained the reports

in the regular course of its business. Argueta, 224 Ill. App. 3d at 20-21. 

¶ 26 Likewise, here, a reasonable interpretation of the evidence is that the manufacturer 

provided the price information to WPPE pursuant to a business relationship, and WPPE in turn 

integrated that information and used it in the course of its own business. Thus, this situation is 

distinct from McCullough, where the third party had no business relationship with the primary 

entity. Accordingly, we cannot say the trial court abused its discretion by admitting the entire quote 

document, including the price information. 

¶ 27 Defendant next argues that the evidence was insufficient to establish the value of the 

counterweights, even if the manufacturer’s price was admissible, because no evidence established

the counterweights’ fair cash market value. 

¶ 28 When considering the sufficiency of the evidence, the reviewing court construes the 

evidence in the light most favorable to the State and determines whether any rational factfinder 

could find the defendant guilty beyond a reasonable doubt. People v. Newton, 2018 IL 122958, ¶ 

24. All inferences are drawn in favor of the State. People v. Eubanks, 2019 IL 123525, ¶ 95. The 

reviewing court must not substitute its judgment for that of the factfinder regarding the weight of 
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the evidence and the credibility of witnesses. People v. Hardman, 2017 IL 121453, ¶ 37. The 

defendant’s conviction should be affirmed unless the evidence is “so unreasonable, improbable, or 

unsatisfactory” that it raises reasonable doubt of his guilt. Newton, 2018 IL 122958, ¶ 24.

¶ 29 To establish the value element of theft crimes, the State must enter evidence to establish 

the “fair cash market value” of the property at the time of the theft. People v. Perry, 224 Ill. 2d 

312, 336 (2007). The State need not prove the property’s exact value. People v. Davis, 132 Ill. 

App. 3d 199, 203 (1985). The property’s replacement cost or purchase price is not normally 

equivalent to fair cash market value. People v. Brown, 36 Ill. App. 3d 416, 421 (1976) (citing 

People v. Stewart, 20 Ill. 2d 387 (1960)). Evidence of the property’s cost, however, along with 

evidence regarding its “condition, quality, and modernness or obsolescence,” can provide a basis 

to establish the fair cash market value. Brown, 36 Ill. App. 3d at 421 (citing People v. Todaro, 14 

Ill. 2d 594 (1958)). Additionally, testimony can be sufficient to establish a felony threshold amount

even if it was not specifically addressed to the property’sfair cash market value. People v. Cobetto, 

66 Ill. 2d 488, 491 (1977). 

¶ 30 Here, the quote to replace stated that the replacement cost of the counterweights was 

$194,000, including tax. Wisnieski testified that counterweights typically do not suffer from wear 

and tear and do not depreciate in value, though neither he nor anyone from WPPE had examined 

the specific counterweights at issue. He further testified that counterweights can be purchased 

used, but it is not a common practice, and they are generally not interchangeable. Jeff Handelman

of South Shore testified that the counterweights appeared new to a degree that he believed he 

should alert the police. 
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¶ 31 We find that a rational factfinder could have concluded that the record established the 

counterweights had a fair cash market value between $100,000 and $500,000 at the time of the 

theft. While the replacement cost of $194,000 is not conclusive, it can be considered alongside 

other evidence to establish value. Brown, 36 Ill. App. 3d at 421. Here, the evidence suggested that 

the counterweights were in such good condition when they arrived at South Shore that Handelman

believed they looked new, and he should therefore call the police because they were likely stolen. 

Additionally, Wisnieski testified that counterweights do not lose their value over time and were 

unlikely to sustain wear and tear. While this is not conclusive of the actual condition of the 

counterweights, as Wisnieski admitted he did not personally view them, a rational factfinder could 

consider this testimony along with Handelman’s testimony to conclude that the counterweights

were in good condition and were not obsolete. Additionally, Wisnieski testified that 

counterweights can be sold used, though it is rare, which permits the inference that the 

counterweights had a market value apart from their utilization in the particular cranes LaGrange 

purchased from WPPE. 

¶ 32 This record supports the conclusions that the counterweights at issue had an initial value 

of approximately $94,000 over the statutory limit, were in good condition and not obsolete at the 

time of the theft, and had value in a secondary market apart from their utilization in their original 

cranes. A rational factfinder could conclude from these facts that the counterweights’ fair cash 

market value was between $100,000 and $500,000 at the time of the theft.

¶ 33 Defendant argues that the evidence only established replacement cost and did not 

demonstrate the counterweights’ actual condition at the time of the theft. Defendant further argues 

that logic and the fact of a secondary market for used counterweights requires this court to assume 
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that counterweights depreciate in value, counter to Wisnieski’s testimony. But even conceding 

these points, we must draw all reasonable inferences in favor of the State and view the evidence 

in the light most favorable to the State. Hardman, 2017 IL 121453, ¶ 37. Under this standard of 

review, the record supports a conclusion that though the counterweights possibly depreciated in 

value to some degree, their fair cash market value remained over $100,000 at the time of the theft.

¶ 34 Finally, we acknowledge that defendant cites materials in his brief that were not included 

in the record at trial, namely information from “crane resale websites” indicating that cranes reduce 

in value over time, and asks that we take judicial notice of certain facts contained in the materials. 

As the State argues, we may not consider these materials for the purposes of this appeal. See People 

v. Heaton, 266 Ill. App. 3d 469, 476 (1994) (the court on appeal should not take judicial notice of 

materials not before the trial court). Consequently, we will not disturb the trial court’s conclusion 

that the counterweights had a fair cash market value between $100,000 and $500,000 at the time 

of the theft.

¶ 35 For the foregoing reasons, defendant’s conviction is affirmed.

¶ 36 Affirmed.