## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Jenkins , 2012 IL App (2d) 091168

Appellate Court Caption THE PEOPLE OF THE STATE OF IL LINOI S, Plaintiff-Appe l lee, v. DAVID E. JENKINS, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-09-1168

Filed J anuar y 19, 2012

Held ( Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for obstruction of justice was reve rsed wher e the evidenc e was insufficient to prove bey ond a rea sonable doub t t h at he obstructed the prosec ution of his s o n b y g iving an office r false information as to whether he had a son, since the essenc e of the crime of obstruction of justice is the conce alment of evidenc e relating to a criminal investigation or prosec ution, the office r who questioned defe ndant about

a minor tra ff

ic acc ident never indicated that he was seeking to arr est defe ndant’s son or that a criminal prosec u tion was involved, the entire exchang e was brief, the confusion arising from the fac t that defe ndant and his son had the same first an d l ast names was “cle are d up within seconds,” defe ndant promptl y provided the office r with corr ect information pertaining to his son, despite his purported initial denials of having a son, and the police we re a ble to locate de fendant’s son.

Dec ision Under Review Appeal from the Circuit Court of Kane County
, No. 09-CF- 877; the Hon. Thomas E. Mueller , J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appeal Thomas A. Lilien and Patrick M. Carmody
, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. Charles (Stephen E. Norris and Sharon Shanahan, both of State’s Attorney s Appellate Prose cutor’s Offic e, of c ounsel), for

the People.

Panel J USTI CE HUTCH I NS ON delivere d the judgme nt of the court, with opinion. J ustices Z enoff

and B irkett conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant, David E. J enk i n s , wa s fo u n d guilty of obstructing justice (720 IL CS 5/31-4(a) (West 2008)) and was sentenc ed t o an 18-month term of conditional discharg e and 100 hours of public service

. Def endant contends on appeal that the trial court err ed by (1) limit ing his examination of his wife and son about a conver sation with

an Elg in police office r that led to his prosec ution, and (2) admonishing his son ab o u t t h e privileg e ag ainst self-incrimination. W e re verse

.
¶ 2 The indictment char g ed defe ndant with obstructing justic e i n M ar ch 2 0 0 9
, “i n that defe ndant with the intent to obstruct the prosec ution of David T. J enkins, knowing ly furnished false information to Offic er Ba rnar d, a police office r, as to whether he had a son.” Thereis no dispute that David T. J enkins was de fendant’s then 17-y ear -old son. ¶ 3 At trial, during his opening statement, defe nse counsel assure d the jury that it would hear

a differ ent acc ount of def

e n d a n t’ s b rie f c o n v er s ati o n w ith Ba rnar d. Def

ense counsel indicated that defe ndant was speaking with his son on a cellular telephone when Ba rnar d arr ived, and defe ndant’s son heard the conver sation over the telephone. In addition, defe ndant’s wife, Carol J enkins, was prese nt during the exchang e betwee n Ba rnar d an d defe ndant. Def ense counsel indicated that defe ndant’s wife and son woul d give the following acc ount of the exchang e betwe en B arna

rd and de fendant: “A male police office r comes up and say s I ’m looking for David J enkins. I ’m he. Do y ou own a white Mustang ? No, I don’t, but my son does. Does heg o by

J unior? No he doesn’t he g oes by David Theodore J enkins. I s he here ? No. Do y ou know where he is? No. He lives w ith his m other.” ¶ 4 T h e S t at e’ s fi rst witness was Elg in police officer J ason Ba rnar d, who testified that he spoke t o defe ndant at defe ndant’s home. B arna rd identified himself a s a police of fice r and

-2-told defe ndant that he was investiga ting a minor traff

ic acc ident and looking for “a” “Da vid J enkins.” Def

endant indicated that h e was David J enkins. Ba sed on his investigation, Ba rnar d expected the driver of the Mustang to be y oung er than defe n d an t , s o h e asked defe ndant whether there was a “Juni or David J enkins.” Def endant responde d that there was not. Ba rnar d testified that h e t h en asked defe ndant whether he had “a son named David J enkins.” Acc ording to Ba rnard, defe ndant answe red “no.” Ba rnar d testified, “At that point I asked him, so y ou don’t have a s on named David J enkins who drives a white M ustang ? ” Acc ording to Ba

rnar d, defe ndant said that he did not. ¶ 5 Ba

rnar d further testified that Offic er Heather Fa rre ll a p p r o ac h e d
, an d d e f

e n d an t t h ere af ter stated that he did have a son named David J enkins, who did not own the Mustang but whose mother owne d it. Barnard te stified that he plac ed def endant “ under a

rre st for obstruction.” ¶ 6 On cr o s s -e x am i n at i o n, Ba rnar d admitted that defe ndant was being t ru t h fu l wh en d ef en d ant told him that he was David J enkins. Ba rnar d admitted that there was a wom an prese nt during the conver sation with defe ndant, but he could not rec all what she was doing during the conver sation. Ba rnar d could not rec all whether he made any statements to her, and he could not rec all whether she made any statements to him. Ba rnar d admitted that he spoke with defe ndant “[m] ay

be two minutes, if that,” prior to arr esting him. ¶ 7 Elg in police offic er H eathe r Fa rre ll testified that she wa s on duty with Ba rnar d. Fa rre ll testified that she hear d the conver sation betwee n Ba rnar d and defe ndant. Fa

rre ll testified that “[t] he conver sation they wer e having was whether or not he had a son named David J enkins, and the De fendant had said no.” ¶ 8 On cross-e x amination, Fa rre ll acknow ledg ed that there was a white fema le standing on the s tairs j ust inside the door, approximately six fee t from her and Barna rd and defe ndant. Fa rre ll testified that she observe d the fema le in the backg round throug hout the conver sation. ¶ 9 Be fore the defe nse p ro ce ed ed with its case -in-chie f, the State asked the trial court to advise defe ndant’s son of his fifth amendment privileg e ag ainst self-inc rimination. The State indicated that, if defe ndant’s son testified that he overhe ard the conver sation bet we en defe ndant and Ba

rnar d, he m ight risk being prosec uted for eave sdropping

. The State also arg ued that anything defe ndant’s son h ea rd o v er the telephone would be inadmissible hear say

. Wit h respe ct to the hear say issue, defe nse counsel responde d that defe ndant’s son’s testimony would contra dict, and there by impeach, Ba rnar d’s testimony and was admissible for that purpose. Def

ense counsel also ar g ued that, althoug h defe ndant’s son hear d the

conver sation over the telephone, he was no less competent than defe ndant’s wife–w ho was phy sically prese nt during the conver sation–to testify as to what he hear d. That sug g estion prompted t he S tate to object that defendant’s wife’ s testimonywould also be inadmiss ible hear say

. The trial court ruled that defe ndant “[could] certainly use [hi s wife’ s an d s o n ’s testimony ] to impeach the office r’s testimony ,” but could not bolster his own testimony “by having [hi s wife and son] parrot what he is g oing to say he said.” ¶ 10 Be fore defe ndant’s son took the stand, the trial court warned him that his testimony might subject him to prosec ution for eave sdropping and advised him of the privileg e ag ainst selfincrimination. Def

endant’ s son initially chose to testify

. Howeve r, when the questioning turned to the subjec t of whethe r he ha d overhe ard the conver sation betwee n defe ndant and

-3-Ba rnar d, the trial court reiter ated that defe ndant’s son might fac e a char g e of eave sdropping

as a result of his testimony and that he could not be compelled to testify

. At that point, defe ndant’s son dec lined to testify further

. ¶ 11 Def

endant t h en ca l l ed h i s wife, Carol J enkins, as a witness. Def ense counsel a sked whether Ba

rnar d told defe ndant that he was looking for David J enkins. The State objected, stating, “This isn’t impea chment.” The trial court sustained the objection. Def ense counsel next inquired whether the officer asked defe ndant if he was Da v i d J enkins

. The State objected and a sidebar ensued at which the trial court implied that the answe r to the question would be inadmissible beca use it would not c o ntradict Ba rnar d’s testimony

. Def

ense counsel next i nquired whether the office r asked if David T. Jenkins lived at defe ndant’s re sidence

. The State objected that “[i] t doesn’t contra dict anything the office r tes tified to.” The trial court sustained the objection. The trial court also sustained the State’s objection when defe nse counsel asked whether the office r had asked about David T. J enkins’ wher eabouts. Def ense c ounsel asked no f

urther que stions about the conver sation betwee n defe ndant and Ba rnar d. ¶ 12 Def

endant testified that Ba

rnar d initially indicated that he was looking fo r David Jenkins. Def endant said that he was David J enkins. Ba rnar d asked whether defe ndant owned a white Mustang

. Def

endant responded that he did not but his son did. Ba rnard asked if defe ndant knew whe re his son wa s. Defe ndant re sponded that he did not; he lived in Alg onquin with his mother. Ba

rnar d asked if defe ndant’s son “g oes by J unior.” Def endant responde d that his son “g oes by

David The odore Jenkins.” ¶ 13 Fol l o wi n g t h e cl o s e o f ev i dence
, defe ndant moved for a mistrial. The motion was

acc ompanied by a written offe r of proof indicating that Carol J enkins was prepa red to testify that the conve rsation betwe en def endant and Ba

rnar d was a s follows: “Of fice r, ‘I ’m looking f

or Da vid J enkins. Arey ou David Jenkins? ’ Def endant, ‘ Yes, I ’m David Jenkins.’ Offic er, ‘ Do y ou have a

son named David J enkins J r.? ’ Def endant, ‘ No, I

do not. I have a son named David TheodoreJ enkins.’ Offic er, ‘ Does helive here ? ’ Def endant, ‘ No, he doe s not.’ Offic er, ‘ Well y ou know wher e he is? ’ Def endant, ‘ I don’t know whe re my

son is.’ Offic er, ‘ Does hehave a

white Mustang ? ’ Def endant, ‘ Yes, hedoes.’ ” ¶ 14 Acc ording to the offe r of proof, had defe ndant’s son not invoked hi s p ri v i l ege ag ainst self-inc rimination, he would have testified that he overhe ard the foll o wi ng conver sation betwee n defe ndant and the policeoffice r: “Of fice r, ‘Ar e y ou David Jenkins? ’ [Defendant] , ‘I ’m he.’ Offic er, ‘ I s y our son J r.? ’

-4-[Defendant] , ‘No, heis Theodore .’ Offic er, ‘ Do y ou own a white Mustang .’ [Defendant] , ‘No, my

son does.’ Offic er, ‘ I s y our son her e? ’ [Defendant] , ‘No. Helives with his mot her.’ Offic er, ‘ You’reunder a

rre st.’ ” ¶ 15 After

defe ndant re sted, the trial court conducted a confe renc e on jury instructions. The parties pr esente d their closing arg uments, and the trial c ourt instructed the jury . Following deliberations, the jury

found defe ndant g uilty of obstructing justice. The trial court enter ed judgme nt on the verdic t. D efe ndant there afte r filed a motion for a new trial, which the trial court de nied. ¶ 16 At sentenc ing, thetrial court c ommented:

“[It is] frustrating to the Court that this *** is clea red up in seconds when the fema le office r comes around the corne r, makes the connec tion with [defendant], and beca use of her prior history wi t h [ defe ndant] and his son, *** it’s within seconds that it become s obvious that there is a son that hehas lied to Off icer No. 1. There ’s no dollars expended in some leng thy investigation that results from his ly ing. This is something that’s cle are d up within seconds.” The trial court there afte r sentenc ed defe ndant to an 18-month term of conditional discharg e and 100 hours of

public service . Def

endant f iled a timely

notice of a

ppeal. ¶ 17 Def

endant first contends that the trial co u rt er re d when it ruled that the testimonyof defe ndant’s wife and son about the conv er sation betwee n defe ndant and Ba rnar d was in a d missibl e hear say

. As our supreme court has noted, “[h] ear say is an out-of- c o u r t s ta te me n t offe red to establish the truth of the matter asserted [citations] and testimony about an out-of-c ourt statement which is used for a purpose other than to prove the truth of the matter

asserted in the s tatement is not hear say .” People v. Banks
, 237 I ll. 2d 154, 180 (2010); see also People v. Dunmore
, 389 I ll. App. 3d 1095, 1106 (2009) (citing People v. Evans
, 373 I ll. Ap p

. 3 d 9 4 8
, 964 (2007))

. Acc ording to the offe r of proof, Ba rnar d made only tw o
s t at em ents during the conver sation: “I ’m looking for David J enkins,” and “You’ re un d er
arr est.” The remainder o f wh at Ba rnar d said was a series of questions that did not assert anything and, there fore
, co u l d not possibly be offe red to establish the truth of the matter

asserted. ¶ 18 We ag ree with defe ndant that the questio n s Ba rnar d posed to him and the answe rs he g ave wer e not hear say

. Occ urre nce witnesses testify “bec ause they witnessed or participated in the transac tions or events that are part of the subject matter of the litigation.” Tzystuck v. Chicago Transit Autho r ity
, 124 I ll. 2d 226, 234-35 (1988). Her e, the witnesses and p a r ti c ip an ts included defe ndant, Ba rnar d, Fa rre ll, defe ndant’s wife, and defe nda n t’ s s o n

. A n y of these individuals were capa ble of testifying as to their version of events. Ba rnar d testified reg arding the questions he asked defe ndant and defe ndant’s response s. Fa rre ll was allowed to testify reg arding the questi ons Ba rnar d asked defendant and defendan t ’s re s p onses. For the trial court to there afte r bar defe ndant’s wife and son from testifying about the questions

-5-Ba rnar d asked and defe ndant’s re sponses was err or. The heart of the dispute betwee n the parties was what questions Ba rnar d asked and what answe rs defe ndant g ave. The trial court ruled t hat defe ndant’s wife and son could offe r only testimony that impeache d Ba rnar d’s testimony . Acc ording ly , we find that the t rial court abused its discretion whe n it ruled that the testimony of defe ndant’s wi fe an d son was hear say and barr ed their testimony

. See Dunmore , 389 I ll. App. 3d at 1105 (citing People v . W heele r , 226 I ll. 2d 92, 132 (2007)). ¶ 19 The S tate’s assertion that defe ndant’s own statements (as related i n t h e o ff er of proof)

wer e hear say is meritless. Def endant’ s statements would have been offe red not to prove the truth of the matters asserted–that defen dant was David J enkins, that he had a son named David Theodore J enkins (not David J enkins, J r.), and that his son owned or drove a Mustang –but rathe r to contra dict Ba rna r d ’ s te s ti mo n y

. Acc ording to the State, “the testimony of [defendant’ s] wife and s on was offe red to show the truth or falsity of defe ndant’s statements to police, which is clea rly inad missibl e hear say .” To the contra ry , g iven the State’s theory of the crime, evidenc e t h at defe ndant told Ba rnar d that he had a son named David Theodore J enkins would impeach the State’s theory that defe ndant truly intended “to obstruct the prosec ution of Da v id T. J enkins [when he] knowing ly furnished false information to Offic er Ba rnar d, a police office r, as to whether he had a s o n .” The State submitt ed evidenc e t h at defe ndant purportedly made other statements and that those statements wer e untrue . The State’s case nece ssarily fails if defe ndant did not in fa ct make the statements that the State attributed to him. The State’s arg ument seems to assume that,

even if defe ndant told Ba rnar d that he had a son named David J en k i n s , he would still be g uilty of obstructing justice unless that stat em en t wa s true. The most obvious flaw in the arg ument is that, whatever defe ndant told Ba rnar d, he did not bear the burden of proving that his statements wer e true. Rather, the State bore the burden of provin g t h at d efendant’s statements wer e false. See I llinois Patt er n J u ry Instructions, Criminal, No. 2.03 (4th ed. 2000) (providing that the “State has the burden of proving the g uilt of the defe ndant bey ond

a rea sonable doubt, and this burden remains on the State throug hout the case

. The defe ndant i s n o t re q u ired to prove his innocenc e.”)

. Thus, if the jury believed that defe ndant to l d Ba rnar d that he had a son named David J enkins who o wn ed or drove a white Mustang
, it would have been require d to acquit defe ndant unless the S tate offe red evidenc e that those statements wer e untrue

. ¶ 20 Def

endant next contends that the trial court abused its discretion when it admonished his

son about the privileg e ag ainst self-inc rimination. Def endant arg ues that his son’s testimony would not have aff

orded the Stat e an y g rounds for char g ing his son with eave sdropping

. Defendant’s son invoked the privileg e ag ainst self-inc rimination before any questionin g about the conve rsation he he ard ove r the c ell phone. ¶ 21 Eav es d ro p p ing on a law enfor ceme nt office r’s conver sation is a Class 1 felony if the office r was eng ag ed in his or her officia l duties. 720 IL CS 5/14-4(b) (West 2008). A person
co m m i t s eave sdropping when he or she “[k] nowing ly and intentionally uses an
eave sdropping device for the purpose of hearing *** any part of any conver sation *** unless he does so *** with the consent of all of the parties to suc h conver sation.” 720 IL CS 5/14- 2(a) (1) (West 2008). The term “eavesdropping device ” means “any device capa ble of being used to hear or rec ord oral conver sation or interce pt, retain, or transcribe elec tronic

-6-comm unications whether such conver sation or elec tronic communication is conducte d i n

person, by telephone, or by any other means; Provided, howeve r, that this definition shall not i n cl ude devices used for the restoration of t he deaf or hard- of-he aring to normal o r p ar t i al hearing.” 720 IL CS 5/ 14-1(a ) (West 2008). ¶ 22 In People v. Armbrust
, 20 1 1 I L Ap p (2d) 100955, the reviewing court discussed case s
co n ce rn ing telephones, including cellular phones, and whether and to what extent th ey constituted an eavesdroppingdevice : “It is well recog nized that a p h o n e d o es not constitute an eavesdropping device unless it has been altere d in such a manner that it can no longe r perf orm its customary functions of transmitting and rec eiving sounds. People v

. Gerv asi
, 89 Ill. 2d 522, 526-27 (1982)

. Acc ording ly
, an unaltere d phone is not considere d an eave sdropping device
, even wher e the rec eiver is tilted so that another person may listen in or a person listens on an extension. People v. Shinkle
, 128 I ll. 2d 480, 489 (1989) (whe re an office r listened on an extension with his hand covering the mouthpiece, the phone was not transformed into an
eave sdropping device beca use the office r’s hand did nothing to alter the phone’s ability to transmit sound); People v. Gain es , 8 8 I ll. 2d 342, 363 (1981) (a phone was not an
eave s d ro p p ing device wher e an office r listened on an extension, beca use the

eave sdropping statute is not direc ted at phones that have not been functionally altere d); People v. Benne tt , 120 I ll. App. 3d 144, 149 (1983) (a switchboard wa s n o t an
eave sdropping device beca use it could transmit messag es); People v. Petrus
, 98 I ll. App. 3d 514, 517 (1981) (a phone was not considere d an eave sdropping device wh er e t he

rec eiver was held so that both the office r and the informant could hear what the def en d an t wa s saying)

. The addition of a separ ate device to a phone to allow ot hers to hear
, howeve r, does convert the phone into an eave sdropping device

. See People v. Perez
, 92 Ill. App. 2d 366, 372-73 (1968) (appa ratus that scre wed o n t o t h e phone

rec eiver to allow others to hear constituted an eave sdropping device ).” Armbrust
, 2011 IL App (2d) 100955, ¶

7. ¶ 23 Under the principles discussed in Armbrust
, it is clea r that a cellular telephone is not an
eave sdropping device unless it has been functionally altere d. See id. (citing Gerv asi
, 89 I ll. 2d at 526-27). Her e, the testimony from both B arna rd and defe ndant ref

lected that Ba

rnar d

was awa re that defe ndant was eng ag ed in a cellular telephone conver sation. Ba rnar d testified that, when he and another office r approa ched the front door to de fendant’s house, he hear d the backdoor close. Ba

rnar d then walked to the backy ard, where he observe d defe ndant “hitting the ba ck door two to thre e times, and *** saying oh, no; oh, no.” Ba rnard testified that defe ndant was holding a cellular telephone. Def endant ree ntere d the house and Ba rnar d walked to the backdoor and beg an to speak with defe ndant. The State prese nted no evidenc e that defe ndant’s cellular phone had been functionally altere d in any manner

. There for e, defe ndant’s cellular phone was not an eavesdropp i n g device under the statute. See People v. W illiams
, 239 Ill. 2d 119, 127 (2010) (review ing de novo the construction of a statutory term ). As such, defe ndant’s son could not have been lawfully charg ed with violating the

eave sdropping statute. Be cause defe ndant’s son could not have committed any violation of the eave sdropping statute, there was no dang er of incrimination. See People v. Medrano
, 271 I ll. App. 3d 97, 102 (1995) (citing People v. Redd
, 135 I ll. 2d 252, 304 (1990))

. Acc ording ly
,

-7-the trial court err ed when it admonished defe ndant’s son reg arding the privileg e ag ainst selfincrimination if he testified r eg arding the conve rsation betwe en def endant and Ba

rnar d. ¶ 24 We nex t deter mine whether the trial court’s err ors in prec luding defe ndant’s wife and defe ndant’s son fr om testify ing w ereharmless be y ond a re asonable doubt. In doing so, w e consider de fendant’s need to testify to pr esent a defe nse as part of that inquiry . See People

v. Ave rett , 237 I ll. 2d 1, 10-11 (2010) (citing People v. Patrick
, 233 I ll. 2d 62, 75-76 (2009))

. Further, in determining whether
, in the absenc e of the err ors, the outcome of the trial would have been differ ent, revie w is made of the proce eding s as a whole, based upon examination of the entire rec ord. People v. Howard
, 147 Ill. 2d 103, 148 (1991). Our revie w of the rec ord

reve als that there exis ted signific ant g aps in de fendant’s theory of the case , which require d that he testify

. The trial court’s ruli n gs effectively barr ed defe nse counsel from asking defe ndant’s wife what defe ndant told Ba rnar d about his son and barr ed defe ndant ’s wife from res p o n d ing that defe ndant told Ba rnard that his son was named David Theodore J enkins and was not called “David J enkins, J r.” The trial court’s ruling s also eff ectively impeded defe ndant’s wife’ s testimony that defe ndant told Ba rnar d that his son drove a white Mustang

. After the trial court barr ed defe ndant’s wife and defe ndant’s son from testifying to the events that transpire d betwee n Ba rnar d and defe ndant, only defe ndant could provide testimony reg arding hi s actions afte r Ba rnar d approa ched him and asked questions reg arding the identity and whereabouts of defe ndant’s son. Be cause the trial court ref used to allow the

occur renc e witnesses to testify on d efe ndant’s behalf as to these points, defe ndant’s testimony was his only means to prese nt a defe nse. There fore
, in revie wing the impact of the trial court’s err ors in light of the fac ts of the instant c ase, we determine that the err ors wer e not harmless bey ond a reasona b l e doubt and that reversal is require d. See Patrick
, 233 I ll. 2d at 75-76. ¶ 25 In reve rsing the trial court’s judgme nt, we must nece ssarily addre ss the double jeopar dy implications. The double jeopar dy clause (U.S. Const., amend. V; I ll. Const. 1970, art. I
, § 10) prohibits retrial for the purpose of aff ording the prosec ution an o t h er o pportunity to supply evidenc e that it failed to pr esent in the first proce eding
, even if that first proce eding resulted in a jury finding of g uilty

. Burks v. United States
, 437 U.S. 1, 11 (1978). It does not, howeve r, prec lude retrial wher e a conviction has been set aside beca use of an err or in the proce eding s leading to t h e co n v i ction. People v. Mink
, 141 Ill. 2d 163, 173-74 (1990). There fore
, to preve nt the risk o f ex p o s ing defe ndant to double jeopar dy
, we must also consider whether the S tate presented sufficient evidence to prove defendant g u ilty bey ond

a rea sonable doubt. See People v. Morris
, 135 Ill. 2d 540, 549-51 (1990); People v. Gargani
, 371 I ll. App. 3d 729, 737 (2007). Be causethe State otherw ise may retry defe ndant, double jeopar dy require s us to rule upon defe ndant’s sufficie ncy -of- the-e vidence claim. See People v. Taylor , 76 I ll. 2d 289, 309 (1979). ¶ 26 The ap p ro p ri at e s t an d ar d o f re view in ruling on the sufficie ncy of the evidenc e is whether
, afte r viewing the evidenc e in a light most favorable to theState, any rational trier of fa ct co u l d have found the essential elements of the crime bey ond a rea sonable doubt. People v. Brooks
, 187 I ll. 2d 91, 132 (1999). In revie wing the s ufficie ncy of t he evidence, the critica l inquiry is “whe ther the evidenc e rea sonably supports a g uilty finding reg ardle ss of whether the evidenc e is direc t or circ umstantial, or whether the trial was by bench or jury .”

-8-People v. Kotli nski
, 2011 IL App (2d) 101251, ¶ 38 (citing People v. Lissade
, 403 I ll. App.

3d 609, 612 (2010))

. ¶ 27 Upon car eful and thoroug h revie w of the rec ord in the light most favor able to the State, this court finds the evidenc e insufficient to support the jur y ’s verdic t of g uilty bey ond a
rea sonable doubt. The S tate was require d to prove that (1) defendan t knowing ly furnished false information to Ba

rnar d “as to whether he had a son,” and (2) it was furnished with the intent to obstruct the prosec ution of his son, David T. J enkins. See People v. Gray
, 146 I ll. App. 3d 7 1 4
, 7 1 6 (1 986). Even if defe ndant furnished false information to Ba rnar d as to whether he had a son, that, in and of itself, is insufficient to support the j ury ’s verdict. See People v. Jack iewicz
, 163 I ll. App. 3d 1062, 1065 (1987) (stating that the obstruction-ofjustice statute require s more than the g iving of false inf ormation to the police). The statute require s that, when the false information is g iven, it must be g iven with the intent to preve nt the prosec ution of any

person and with the knowledg e that the information was untrue. Id. Her e, t h e only testimony ref lecting the prosec ution of David T. J enkins occur red when Ba rnar d told defe ndant that he was investigating a minor traff ic acc ident and looking for “a” “David J enkins.” The essenc e of th e cr ime is the conce alment of evidenc e relating to a criminal investigation or p rosecution. People v. Ivy
, 166 I ll. App. 3d 266, 269 (1988). Ba rnar d never i n d i ca t ed or testified that he was seeking to arrest David T. J enkins or otherwise appre hend David T. J enkins; there fore
, d ef endant was never informed that a criminal matter or a prosec ution was involved. Moreove r, the entire exchang e lasted two minutes, “if that,” and the trial court found that the entire mat t er wa s “cle are d up within seconds.” In Ivy , the reviewing court re verse d the def endant’ s conviction of obstruction of justice, finding that the evidenc e ref lected that the defe ndant cooper ated with the police and that his cooper ation led t o the arrest of two suspects in a shoot ing, despite the defendant’s providing the police with a false addre ss and leaving the police station befor e the office rs had finished interviewing him. Simi larly
, defe ndant here
, and in mu ch l ess time, provided Ba rnar d and F arr ell with corre ct information pertaining to D avid T. J enkins and his a cce ss to a white Mustang
, despite defe ndant’s initial re sponse that there was not a “Juni or David J enkins” or his purported denials of having a son. As the trial court noted, it was “cle are d up within seconds.” ¶ 28 It is our duty to car efully examine the ev i d en ce an d
, i f we are of the opinion that the evidenc e is insufficient to establish the defe ndant’s g uilt bey ond a rea sonable doubt, we must

reve rse the judgme nt. Id. at 270. Ba sed upon an examination of the entire rec ord befor e us,
we conclude that t h e S t ate failed to prese nt proof of any intent by defe ndant to obstruct justice. In a time span of less than two minutes, defe ndant cooper ated with the police and his cooper ation enable d the police to there afte r determine who David T. J enkins was and locate h i m

. W e find that the evidenc e is wholly insufficient to prove defe ndant g uilty bey o n d a
rea sonable doubt of obstruc tion of justice. ¶ 29 Be cause the State’s evidenc e is insuffi ci en t t o s u s t ai n d ef en d ant’s conviction, we determine that defen d ant would be subject to double jeopar dy

. A retria l of defe ndant is, there fore
, barr ed. See Burks
, 437 U.S. at 11-18; People v. Holloway
, 92 I ll. 2d 381, 386-87 (1982); Taylor
, 76 I ll. 2d at 309 (prohibiting a retria l of a defe ndant wher e the evidenc e prese nted by the prosec utor at the first trial was insufficient to convict, beca use retria l would

-9-subject the de fendant to double jeopardy ).

¶ 30 For the fore g oing rea sons, we reve rse the judgme nt of the circ uit court of KaneCounty

.
¶ 31 Reverse d.

-10-