2013 I LApp (1st) 103835 FOU RTH DIVI SI ON September 19, 2013
No. 1-10-3835 In reJ OVAN A ., a Minor (The People of the State of I llinois ,

Plaintiff-Appellee , v. J ovan A., a

Minor, Respondent-Appe llant). ) ) ) ) ) ) ) ) ) ) Appea l from the Circuit Court of Cook County No. 10 J D 3836 Honora ble L ori Wolfson, J udg e Presiding
.

J USTI CE EPS TEI

N deliver ed the judg ment of the c ourt, with opinion. J ustice L avin conc urre d in the judgme nt and opinion. J ustice Pucinski dissented, with opinion.
OP INION ¶ 1 Followinga benc h trial, J ovan A. wa s adjudicate d delinquent and se ntence d to 18 months' probation. Respondent c ontends on appe al that the trial c ourt improperly relied on he arsa

y , specific ally , the content of a cr aig slist.org a dvertisement, to find that he committed theft. For 1 the re asons that follow, we reve rse r espondent' s conviction and re mand this cause f or fur ther proce eding s. ¶ 2 BA CKGROUND ¶ 3 L ori Br avi testified that she bor rowe d a Cerve lo P2C triathalon bicycle f rom Elizabeth Waterstrat. At a

pproxi mately

3:35 p.m. on J uly

18, 2010, she par

ked her car near 1652 West

This case was re cently

rea ssigne d by

the cour t. 1No. 1-10-3835

Cortland Avenue in Chicag o, I llinois , and lef t the bicycle attached to a rac k on her trunk while she ente red a

restaur ant. Upon her

return le ss than 10 minutes later, the bicycle wa s missi ng . She found a stre ak of gree n paint on her r ear bumper. ¶ 4 That nig ht, Bra

vi searc hed cr aig slist.org for the bicycle. She e x plained that cr aig slist.org is "a website whe re pe ople g o to listitems for sale." Respondent made se vera l hear say objections when the State e x amined B ravi a bout the website' s content. The c ourt overr uled these objections, noting, " Iwill not allow it for the truth of the matter asser ted, but Iwill allow it to explain the steps that were taken in pursuit of a n arr est." Br avi then testified that she discovere d an adve rtisement for a

Cervelo P2C bicycle r esemblingWaterstrat' s on cra igslist.org . The adver tisement included a te lephone number and four photogr aphs of Cer

velo P2 bicy cles, thoug h not the P2C m odel. She then used a n Interne t service to find the addre ss associated w ith the telephone numbe r listed in the adver tisement. Br avi provided the telephone numbe r, addr ess, and adve rtisement to Detec tive Castaneda at Are a 5 police he adquar ters. ¶ 5 J ohana Ce dicci testified that a sedan c arr

ying r espondent pa ssed within 10 fee t of her a nd Piper Gorsuc h near

the 1600 block of Cortland A venue at approxim ately 3:40 p.m. on J uly

18, 2 2010. Respondent was turne d around in the f ront passeng er se at, holding onto a "tr iathalon bicycle" that jutted out of the open re ar door . I t was a sunny afte rnoon, and nothingobstructed her vie w of re spondent. On Jul y 22, 2010, Cedicci view ed a photo a rra y and a f ive-pe rson lineup and tentatively

identified two of the subje cts. Respondent wa s not repre sented in either the photo

There is some confusion as to whe ther he r name is "Piper T. G orsuch" or " Piper 2 Tg orsuch." We have opted f or " Gorsuch." 2No. 1-10-3835

arr ay or the lineup. On July

23, 2010, she viewe d a sec ond five-pe rson lineup and positively identified re spondent as the f ront seat pa sseng er. ¶ 6 Piper Gorsuc h testified that, at appr ox imately 3:40 p.m. on J uly

18, 2010, she and Johana Cedicci we re w alkingalongthe 1600 block of Cortland A venue when an olde r, ele ctric te al J apane se seda

n disreg arde d a stop sign. Re spondent sat in the front pa sseng er se at with the window rolled down a

nd was holdingonto a Cerve lo triathalon bicycle that stuck out of the open
rea r door. It was a br ight, c lear day , and re spondent passed w ithin 10 feet of he r. Nothing obstructed Gor such' s view of r espondent. On July 22, 2010, Gorsuch vie wed a photo arra

y and lineup, but could not make a de finite identification. On July 23, 2010, she viewe d a sec ond lineup and identified r espondent a s the front seat passeng er. ¶ 7 Detec tive J ose Castane da testified that B ravi, his forme r neig hbor, conta cted him reg ardinga stolen bicycle on July 19, 2010. Br avi told him that she believed the bic y cle wa s beingsold on craig slist.org, a nd Castaneda

viewed the adver

tisement. When the State examined Castaneda

reg ardingthe adve rtisement' s content, re spondent made a hear say objection. The State responde d that the adve rtisement was not be ing of fer ed for the truth of the matter

asser ted, but rathe r to show how the de tective pr ocee ded with his investigation. The trial cour t allowed the testimony for that limited purpose. Castane da fur ther testified that he per formed a databa se
sear ch usingthe telephone number listed in the adve rtisement and discove red r elated na mes, addre sses, and c ar r eg istration information. ¶ 8 On J uly

23, 2010, Castaneda

went to the 1600 block of North Oakley

Avenue , wher e he found a c ar matchingone of the witness' s descr iptions. He detained r espondent a nd another
3No. 1-10-3835

Hispanic male , who wer e sitting in the fr ont seat. He further testified that, when he dialed the telephone numbe r listed in the cra igslist.orgadver tisement, responde nt's c ellular tele phone ra ng . Respondent made a

nother he arsa

y objection, which the tr ial court ove rruled, stating that the testimony would be allowe d for a

limit ed purpose
. ¶ 9 On J uly

22, 2010, Castaneda

showed Cedicc i and Gorsuc h a photo ar ray , and they identified Mig uel and Rene e Salsedo. L ater that day , Castaneda

conducte d a phy sical lineup with the Salsedos as subjec ts, but neither Cedicc i nor Gorsuc h was a ble to identify

them. Respondent was not re prese nted in either the photo arra y or the lineup. The following day , Castaneda
arr ang ed a se cond lineup, and Ce dicci and G orsuch identifie d responde nt. ¶ 10 The pa

rties stipulated that Elizabeth Waterstrat' s bicy cle ha d a value of betwe en $5,000 and $6,000, and that neither she nor Br avi conse nted to responde nt taking it. ¶ 11 Duringits oral pronounce ment, the trial cour t noted that Br avi " did some independe nt investigation" and, a s she " looked throug h some websites he she [ sic ] was able to see a picture of a bicycle that c losely

rese mbled the bike that wa s taken fr om her a nd she conta cted he r for

mer neig hbor, who wa s a dete ctive, and the investigation procee ded fr om there." The c ourt continued: "[Respondent' s] attempt t o sell the bicycle f urther r einforc es that he ha d the intent to permane ntly

deprive the true owner of that bicycle. When they

called the number in the a d for sa le, that phone r angin the minor' s hand. That is sig nificant e vidence . Circumstantial evidenc e shows the minor knew the bic y cle wa s not his. He did not have the r ight to be se lling it,
4No. 1-10-3835

possessing it ***." The trial c ourt adjudicated re spondent delinquent and se ntence d him to 18 mont hs' probation. This appea l followed. ¶ 12 ANALYSI S ¶ 13 Respondent contends on a ppeal that the tr ial court improper ly relied on he arsa

y evidenc e, specific ally , the content of a cr aig slist.org a dvertisement, in findingthat he committed theft. The State argues that re spondent forf eited this issue and, alter

natively , that no hear say

testimony

was admitted. We hold that the trial court improper ly admitted and re lied on the content of the
cra igslist.orgadver

tisement. Be cause this error w as not harmless be y ond a re asonable doubt, we
reve rse a nd rema nd this cause f

or fur ther proc eeding s. ¶ 14 A. For feiture ¶ 15 We must first determine whe ther re spondent prese rved this issue for a ppellate r eview. The State maintains that re spondent forf eited this arg

ument when he failed to objec t during the trial court' s oral pronounc ement. Respondent c laims that the trial court' s relianc e on hea rsay evidenc e constituted plain er ror. ¶ 16 Gene rally , to preser ve an issue f

or appe al, a c riminal defe ndant must object at trial and raise the issue in a posttrial motion. People v . Herron , 215 I ll. 2d 167, 175 (2005). In juvenile proce eding s, the responde nt must obj ect at trial, but need not include the issue in a postadjudication motion. In re M .W

. , 232 I ll. 2d 408, 430 (2009). In this case, r espondent timely and repe atedly

objected dur ing B ravi' s and De tective Castane da' s testimony to the admission of hear say . These obje ctions were sufficie nt to preser ve this issue for re view.
5No. 1-10-3835

¶ 17 The State a cknowledg es these obje ctions, but argues that re spondent " did not object when the trial cour

t alleg edly

relied on the purported he arsa y for the tr uth of the matter a sserted to establish responde nt's ide ntity as the off ender ." T he State cites no a uthority for the pr oposition that a re spondent must object duringa cour t's or al pronounc ement to pre serve an evide ntiary issue, and no such a

uthority appea rs to exis t. See People v . Ford , 301 I ll. App. 3d 56, 59 (1998) (re viewingcourts nee d not addre ss arguments that lack c itation to relevant a uthority ); see a lso I ll. S. Ct . R. 341(h)(7) (ef

f. Jul y 1, 2008) (a

rgument must be supported by citation to authority

). Acc ording ly , we r ejec t the State' s forfe iture ar g ument. ¶ 18 B. Standa

rd of Revie w ¶ 19 We must nex t determine the appropriate standa rd of r eview. Re lying on People v

. Chapman , 194 I ll. 2d 186, 217 (2000), re spondent contends that, be cause "this issue conc erns the judge ' s compliance with the law, and not de terminations of cr edibility , this Court's re view is de

novo ." Chapman addre ssed a f ourth amendme nt issue wholly unrelated to the instant evidentiary question. Chapman , 194 I ll. 2d at 217. The portion cited by responde nt merely

sets forth the g ener al proposition that purely leg al issues are revie wed de novo
. Id. Be cause it does not
conce rn the a dmission of, and relianc e on, hea rsay , we f ind Chapman unavailing
. ¶ 20 The State a

rgues that this issue should be review ed for abuse of discretion. We agree . Evidentiary

ruling s are within the sound discretion of the tria l court and w ill not be rever sed absent a n abuse of

discretion. People v . Caffey , 205 I ll. 2d 52, 89 (2001). Specific ally , I llinois courts apply

an abuse -of- discretion standa rd whe n revie winga trial c ourt' s decision re g arding the admission of hear say . See, e.g. , Caffey , 205 I ll. 2d at 89; People v . W est , 158 I ll. 2d 155, 164-65
6No. 1-10-3835

(1994). An a

buse of discr etion will be found only wher e the tria l court' s ruling is a rbitrar y , fanc iful, or unre asonable , or whe re no r easona ble per son would take the vie w adopted by the trial court. People v . Patrick, 233 I ll. 2d 62, 68 (2009). ¶ 21 C. Hea

rsay Analy sis ¶ 22 Respondent contends that the trial court a dmitted Bravi's a nd Detec tive Castaneda ' s testimony reg ardingthe content of

the cr aig slist.org a dvertisement to show the c ourse of their investigation, but im proper ly considere d that testimony for the tr uth of the matter a sserted. The State argues that no out-of- court stateme nts were admitted, beca use neither

Br avi nor De tective Castaneda

testified re g arding

the content of

the cr aig slist.org a dvertisement. ¶ 23 Hea

rsay is an out-of-c ourt statement off ere d in court to prove the truth of the matter
asser ted. Caffey , 205 I ll. 2d at 88. Hear say is ge nera lly

inadmissible, unless it falls withi n an exception to the rule. Id. at 89. One suc h exception holds that poli ce of fice rs may

testify to information they

rec eived dur ing the course of an inve stigation to ex plain why they arr ested a defe ndant or took other a ction. People v . Rush , 401 I ll. App. 3d 1, 15 (2010). Such testimony is not hear say , beca

use it is offer ed to show the steps a n office r took rathe r than for the truth of the matter a sserted. Id. Under the cour se-of

-investig ation exception to the hear say rule, a n office r may not testify

to information beyond what is nec essar y to expl ain his or her

actions. People v

. Edgec ombe , 317 I ll. App. 3d 615, 627 (2000). Nor may an off icer testify to the content of a

ny statements he r ece ived. People v . Gacho , 122 I ll. 2d 221, 248 (1988). ¶ 24 Her e, we must determine whe ther B ravi' s and De tective Castane da' s testimony reg arding the content of

a cr aig slist.org a dvertisement wa s admissible to show the course of their
7No. 1-10-3835

investigation. W e examine their stateme nts separately
. ¶ 25 1. Bravi ¶ 26 At trial, Br avi testified that she discove red a cra igslist.orgadver

tisement for a

Cervelo P2C bi cycle similar to Waterstra t's. She e x plained that cr aig slist.org is a we bsite where items may be listed for sa le. B ravi fur ther stated that the adver

tisement contained f

our photog raphs of Cervelo bicycles, thoug h they depicted othe r Cerve lo models. Finally , she testified that she
rec orded the telephone numbe r listed in the adver tisement and, throug h rese arc h, deter mined the addre ss that corre sponded with that number. Ove r re spondent' s objection, the trial cour t allowed her te stimony

"to e x plain the steps that wer e take n in pursuit of an ar rest." ¶ 27 Br avi' s testimony

reg ardingthe adve rtisement' s content constituted hea rsay . I llinois courts have long he ld that hear say includes written out-of

-cour t statements. People v . Carpenter , 28 I ll. 2d 116, 121 (1963) (he arsa y includes written e vidence ). F urther, he arsa y includes both matters dire ctly

asser ted and matter s the dec lara nt nece ssarily

implicitl y

intended to express. People v . Thomas , 178 I ll. 2d 215, 237 (1997). The state ment here consisted of the adver tisement' s written content a nd the implication that a Cerve lo P2C bicycle wa s for sale and that interested pa

rties could conta ct the seller via the telephone number listed. ¶ 28 The trial c ourt rec og nized that the State was off eringan out-of- court stateme nt, but admitted it to show course of inve stigation, noting that B ravi may "e x plain the steps that wer e taken in pursuit of a

n arr est." Police office rs may testify to information they

rec eived dur ing the
course of an inve stigation to ex plain why they arr ested a

defe ndant or took other a ction. Rush , 401 I ll. App. 3d at 15. Such testimony is not hearsa

y , beca use it is offer ed to show the steps a n
8No. 1-10-3835

office r took rathe r than for the truth of the matter

asser ted. Id. ¶ 29 Br avi, howeve r, wa s not a police off icer . She was a

lay person c onductingher own private inve stigation. The State argues that B ravi' s testimony was " analog ous to a situation wher e a police office r testified a bout the course of his or her investigation" and a dvocate s the extension of this exception to lay persons. The State cites no authority for this proposition, and none appe ars to exist. S ee Ford , 301 I ll. App. 3d at 59 (re viewingcourts nee d not addre ss arguments that lack c itation to relevant a uthority); see a lso I ll. S. C t. R. 341(h)(7) ( eff . J uly 1, 2008) (a rgument must be supported by citation to authority). ¶ 30 Moreove r, we see no ne ed to addr ess whethe r the c ourse- of-investig ation exception should be extended to lay persons. B y

any measure , Br avi' s testimony was inadmissible, as it exceede d the bounds of the c ourse- of-investig ation exception, where she testified to the adver tisement' s content. People v . Jones , 153 I ll. 2d 155, 160 (1992) (substanc e of state ment normally inadmissible under cour se-of -investig ation exception); People v . Morgan , 142 I ll. 2d 410, 447 (1991), rev'd on other grounds , Morgan v. I llinois , 504 U.S. 719 (1992) (same); Gacho , 122 I ll. 2d at 248 (" Had the substanc e of the conver sation *** been te stified to, it would have been obje ctionable he arsa y .") . Acc ording ly , Br avi' s testimony reg ardingthe content of

the
cra igslist.orgadver

tisement constituted hear say and should not have be en admitted at tria l. ¶ 31 2. Detec tive Castaneda ¶ 32 Detec tive Castaneda testified that he spoke to Bra vi, who told him t hat Waterstra t's bicycle wa s beingsold on craig slist.org. Upon vie wingthe website, he found a te lephone number, a nd based on that number wa s able to obtain re lated name s, addre sses, and c ar
9No. 1-10-3835

reg istration information. He f urther te stified that, when he arr ested re spondent, he c alled the telephone numbe r listed in the adver tisement, and re spondent' s cellular te lephone r ang . Respondent re peate dly

objected to De tective Castane da' s testimony . The trial c ourt ag ain
rec og nized that the State sought to off er a n out-of-c ourt statement, but admitted the testimony to show " how the dete ctive proc eede d with his investigation." ¶ 33 Unlike B ravi, De tective Castane da wa s a police of fice r ac ting in the line of

duty . In order for him to explain the course of his investigation, it was ne cessa ry for him to testify

that, afte r viewinga cr aig slist.org a dvertisement, he went to the 1600 block of North Oakley

Avenue , wher e he disc overe d a ca r matchingthe desc ription he rec eived a nd subsequently

detained responde nt. Had the de tective' s testimony been limited to this information, it would have bee n admissible, even thoug h the trier of fac t could have inf

err ed that the a dvertisement implicated responde nt. See Gacho , 122 I ll. 2d at 248 (testimony admissible even thoug h the infer ence to be drawn there from is that the information moti vated the of fice r' s conduct). ¶ 34 But De tective Castane da also testified r eg ardingthe adve rtisement' s content. Specific ally , he stated that Bra

vi told him that Waterstrat' s bicycle wa s beingsold on craig slist.org a nd that responde nt's c ellular tele phone ra ngwhen he called the number listed in the adve rtisement. Gene rally , under the course -of- investigation ex ception, an of fice r may not testify

to a statement' s content. Jones , 153 I ll. 2d at 160 (substance of statement nor mally inadmissible under cour se-of

investigation ex ception); Morgan , 142 I ll. 2d at 447 (same) ; Gacho , 122 I ll. 2d at 248 (same)
. ¶ 35 In People v . Jura , 352 I ll. App. 3d 1080, 1088, 1095 (2004), this court re verse d and
rema nded for a new trial, wher e the tria l court improper ly admitted the content of

a police r adio
10No. 1-10-3835

messag e under

the cour se-of

-investig ation exception. The Jura court noted tha t the substance of the messag e " direc tly

impacts the ver

y essenc e of the dispute: whether the defe ndant was the man who possessed the gun." Id. at 1088. In this case, the tr ial court a dmitted the content of a
cra igslist.orgadver

tisement under the c ourse- of-investig ation exception. Here , as in Jura , the content of the cra igslist.orgadver tisement directly

impacts the ver

y essenc e of the dispute: whether responde nt was the pe rson who took Waterstrat's bic y cle. F urther, the adver tisement' s content wa s not nece ssary to expl ain the cour se of De tective Castane da' s investigation. See Edgec ombe , 317 I ll. App. 3d at 627 (under the cour se-of

-investig ation exception to the hear say rule, a n office r may

not testify

to information beyond what is nec essar y to expl ain his or her actions). B eca

use it was inadmissible under the course -of- investigation ex ception, the adver tisement' s content constituted hea rsay and should not have be en admitted at tria l. ¶ 36 D. Ha

rmless Error

Analy sis ¶ 37 Be cause err or occ urre d, we must eng ag e in a ha rmless err or ana ly sis. The reme dy for
err oneous admission of hea rsay is rever sal, unless the re cord c lear ly shows that the er

ror wa s harmless be y ond a re asonable doubt. People v . Miles , 351 I ll. App. 3d 857, 867 (2004). When examining whethe r an e rror was ha rmless beyond a re asonable doubt, review ing c ourts must ask whether there is a rea sonable proba bility that the trier of

fac t would have a cquitted the def endant had the he arsa

y been e x cluded. People v . W arlick, 302 I ll. App. 3d 595, 601 (1998). ¶ 38 The State wa s require d to prove that re spondent knowing ly obtained or e x erte d unauthorized control over Waterstrat' s bicy cle, whic h had a va lue exceeding$300, and that he did so with the intent to permanently deprive Waterstrat of he r bicycle. 720 I L CS 5/ 16-

11No. 1-10-3835

1(a) (1)( A) (West 2010). The re w ere only two contested issues at trial: (1) whe ther re spondent was the f ront seat pa sseng er in the te al seda n; and (2) whether

the bicycle in the tea l sedan wa s Waterstrat' s. ¶ 39 Reg ardingthe first question, the trial c ourt cre dited Cedicci' s and Gorsuc h' s identifications of the r espondent a s the front seat passeng er: " The witnesse s were clea r, uncontrove rted in their obse rvations [and] t heir a bility to see the minor r espondent' s fac e***." The c ourt also discounted the only evidenc e that under cut these ide ntifications, finding that the photo arra

y "w as not done in the police station and it was not done under circ umstances that I believe suppor

t the reliability

of that identification." Thus, eve n excluding B ravi' s and De tective Castaneda ' s hear say

testimony , there was suff icient evidenc e that re spondent was the f ront seat passeng er in the te al seda n. ¶ 40 Turningto the second que stion, although no one observe d responde nt take Waterstrat's bicycle, a nd the bicycle wa s not recove red, the State prese nted circ umstantial evidence that the bicycle in the tea l sedan wa s Waterstrat' s. Specifica lly , Gorsuch te stified that the bicycle in the sedan w as a Cer

velo triathalon bicycle, the sa me as Waterstrat's. The bicycle wa s seen on the 1600 block of West Cortland Avenue , wher e the of fense took place, a

pproxi mately

five minutes afte r the bicycle wa s taken. Additionally , rathe r than be ing mounted to a rac k, the bicycle jutted haphazar dly

out of the ca

r' s open re ar door
. ¶ 41 I t is possi ble that a trie r of f act c ould find, based on this evidenc e, that the bicycle in the teal seda n was Waterstra

t's. B ut the trial court' s oral pronounc ement did not show relianc e on this evidence . Instead, its stated re asoningrested a lmost entirely on hear say . Duringits oral
12No. 1-10-3835

pronounce ment, the cour

t noted that Br avi " did some independe nt investiga tion on her own to try to determine what happe ned to the bicycle. As she looked throug h some websites he she [ sic ]
was a ble to see a

picture of

a bicycle that c losely

rese mbled the bike that wa s taken fr om her ***." T he cour

t further found that, " When they

called the number in the a d for sa le, that phone rangin the minor' s hand. That is sig nificant e vidence . Circumstantial evidenc e shows that minor knew the bic y cle wa s not his. He did not have the r ight to be se lling it [or] possessing it ***." Given the tria l court' s express and nea rly exclusive reliance on hear say in addre ssing this question, we find that ther e is a re asonable probability that the trier of

fac t would have a cquitted responde nt had the hea

rsay been e x cluded. ¶ 42 In rea chingthis conclusion, we re cog nize that, unlike in a jury trial, when a

judge sits as the trier of

fac t, we must presume that he or she w ill only consider c ompetent evidenc e. People v. Naylor , 229 I ll. 2d 584, 603-04 (2008). This pre sumption i s overc ome, howeve r, whe re the
rec ord af firmatively

shows that the judg e conside red imprope r evide nce. Id. Her e, the r ecor d aff irmatively

shows that the trial judg e re lied heavily on the hea

rsay content of the cra igslist.org adver tisement. I ndeed, the trial judg e did not expressly rely on any other e vidence in finding that the bicycle in the tea l sedan wa s Waterstrat' s. Acc ording ly , we f ind that the presumption that the trial judg e re lied only

on competent e vidence has bee n overc ome. ¶ 43 The outcome would likely have be en diffe rent ha d the trial cour t not ex pressly

relied on hear say duringits oral pronounce ment. For instance, ha d the cour

t forg one a le ng thy pronounce ment, or re lied in its pronouncement upon prope rly admitted evidenc e, we would likely find the er

ror ha rmless. Compare In re E.H

. , 377 I ll. App. 3d 406, 415-16 (2007) ( err or
13No. 1-10-3835

not harmless beyond a re asonable doubt where trial judg e expressly relied on ina dmissibl e hear say ), and People v . Johnson , 296 I ll. App. 3d 53, 66 (1998) (same), with People v . Y ancy , 368 I ll. App. 3d 381, 385-87 (2005) ( err or har mless where there was no e vidence to overc ome the pre sumption t hat the trial judg e disreg arde d hear say testimony), and People v . Cassell , 283 I ll. App. 3d 112, 125 (1996) (sa me). He re, a s in every

case , we do not know the f ull basis of the trial judg e' s fac tual finding s. We know only what the judg e stated in he r ora l pronounce ment. Ba sed on that pronounc ement, we know that the judg e re lied heavily on hear say

to find that the bicycle in the tea l sedan wa s Waterstrat' s. Acc ording ly , we must reve rse a nd rema nd for a new trial. ¶ 44 Whil e the dissent see ks to reca st the issue prese nted as re asonable doubt and re verse responde nt's de linquency adjudication outrig ht, neither side r aised re asonable doubt in its briefs, nor does r espondent see k the re medy of outrig ht reve rsal that the dissent would g ive. Indeed, the phrase "outr ight r ever sal" appea rs nowher e in the six briefs f iled in this case. Rather , responde nt repe atedly

asks this court for r ever sal and " rema nd for f urther pr ocee dings." The pa rties also devote c onsiderable attention to forfe iture and pla in error arguments that would be irre levant to a
rea sonable doubt issue. See People v . Enoch , 122 I ll. 2d 176, 190 (1988) (c riminal defe ndants need not pr eser

ve re asonable doubt for appe llate re view). We should not ignor e the issues ra ised, briefe d, and ar gued by

the par ties, and without input from them, decide the ca se on a ba sis that was not addr essed by

the par ties. See People v . Givens , 237 I ll. 2d 311, 323-30, 339 (2010) (vac atingthe appe llate cour t's judg ment and re mandingfor f urther pr ocee dings, where the cour t ignor ed issues ra ised by

the par ties and sua sponte considere d an issue not ra ised, brief ed, or
14No. 1-10-3835

argued); People v . McNeal , 405 I ll. App. 3d 647, 676 (2010) (" a re viewingcourt should not normally sear ch the r ecor d for una rgued and unbr iefe d rea sons to rever se a tria l court judg ment" (empha sis and internal quotation marks omitted)) ; see a lso Gree nlaw v. United States , 554 U.S. 237, 244 (2008) ( "' [C ourts] do not , or should not, sally forth ea ch day

looking f or wrong s to rig ht. We wait for ca ses to come to us, and when they do we nor

mally decide only

questions prese nted by

the par ties.' " ( quoting United States v. Samue ls , 808 F.2d 1298, 1301 ( 8th Cir. 1987) (Ar nold, J ., concur

ringin denial of re h' g en banc ))) . This is not, as the dissent asserts, " an evidenc e question with an inadmissible evidenc e question inside it, a re asonable doubt question inside that and a suf

ficienc y of the e vidence question at its core." Infra ¶ 71. See People v

. W heele r , 226 I ll. 2d 92, 114 (2007) (e quatingrea sonable doubt and suf ficienc y of the e vidence analy ses). Ea ch par

ty viewed this ca se as r aising an evide ntiary matter, a nd so do we. ¶ 45 Nor c an we ag ree with the dissent's e quation of re asonable doubt and har mless error analy ses. As we explain above, the re medy for e rrone ous admission of hear say is rever sal, unless the re cord c lear ly

shows that the er

ror wa s harmless beyond a re asonable doubt. Miles , 351 I ll. App. 3d at 867. When examining whe ther a n err or wa s harmless beyond a re asonable doubt, revie wingcourts must ask whethe r there is a rea sonable proba bility that the trier of

fac t would have a cquitted the def

endant ha d the hea

rsay been e x cluded. W

arlick, 302 I ll. App. 3d at 601. In this contex t, the phrase "be y ond a re asonable doubt" r efe rs not to proof beyond a re asonable doubt of a de fenda

nt's guilt, but proof beyond a re asonable doubt that the err or did not contribute to the finding of guilt. S ee People v . Smith , 38 I ll. 2d 13, 15 (1967) (c iting Chapman v. Calif ornia , 386 U.S. 18, 23 (1967)). We ther efor e disag ree with the dissent's c ontention that
15No. 1-10-3835

"ha rmless err or ana ly sis requires a rea sonable doubt dete rmination." Infra ¶ 70. ¶ 46 Even if we addre ssed the issue ra ised by the dissent, we would not re ach its conc lusion that the prosec ution failed to prove r espondent guilty beyond a re asonable doubt. Two witnesses identified re spondent, both in a lineup and at trial, as the per son holding onto a tria thalon bicycle that jutted haphazardly

out of the open r ear

door of a fast-movingcar . Not only did they observe the ca r on the same block as the of fense and within five minutes of the of fense , but Gorsuch identified the bicycle a s a Cerve lo brand triatha lon bicy cle, the sa me as B ravi' s. Nor did the witnesses " provide only

minimal detail about the incident," as the dissent sug g ests. Infra ¶ 56. Be cause responde nt passed within 10 fee t of the witnesses on a clea r and sunny

afte rnoon, and beca use the witnesse s had unobstructe d views, they wer e able to describe the ac tion with considera ble spec ificity : respondent sat in the front seat; he was turne d around in his seat; his window was r olled down; the ca r wa s an older, e lectric teal Japanese se dan; the ca r ra n a stop sign; a bicycle jutted out of the ope n rea r door; and the bicycle wa s a Cerve lo triathalon bicycle, like Br avi' s. ¶ 47 We also find Cedicci' s and Gorsuc h' s identifications compelling . Although the witnesses tentatively

identified the Salsedos in a photo a rra y , they abandone d these identifications upon viewingthe Salsedos in person. L ater , when r espondent wa s a lineup subject, Cedic ci and Gorsuch show ed no hesitation in positively identifying him. The trial court c redited the se identifications. ¶ 48 The dissent also notes that re spondent has alr eady serve d his sentence and, ac cordingto the pre sentenc e investig ation repor t, was 16 and le arning

disabled at the time of the offe nse.
16No. 1-10-3835

Respondent' s completion of his sentence should have no be aringon our dec ision. S ee People v

. Jordan , 218 I ll. 2d 255, 263 (2006) (fa ct that def endant ha s alrea dy

serve d sentenc e does not rende r appe al moot). Simi larly , responde nt's a g e is irre levant, as the ft requir es proof of the same elements re g ardle ss of ag e. See 720 I L CS 5/ 16-1 (West 2010); see also People v . Morgan , 197 I ll. 2d 404, 424-25 (2001) (soc iety has a le g itimate interest in beingprotec ted from c riminal acts perpe trated by

minors). L ikewise, a lthough it was pe rtinent at sentenc ing, r espondent' s learning disability is irreleva

nt both to the evidentiary matter ra ised by

the par ties and the re asonable doubt matter ra ised by

the dissent and should not be consider ed on appe al. See People v

. Fontana , 251 I ll. App. 3d 694, 702-03 (1993) ( wher e def endant doe s not present a n insanity defe nse, evide nce of

his learningdisability

is irreleva

nt during g uilt phase). ¶ 49 CONCLUSI ON ¶ 50 For

the fore g oing r easons, we reve rse r espondent' s delinquency adjudication and se ntence and re mand for f

urther pr ocee dings. ¶ 51 Reverse d and re manded f or fur ther proc eeding s. ¶ 52 J USTI CE PUCI

NSKI , dissenting. ¶ 53 Irespe ctfully

dissent from the majority ’s dec ision to reverse and re mand re spondent’s delinquency

adjudication. The re a

re thre e possible options to resolve this appea l: affirm, re verse outrig ht or reve rse a

nd rema nd for f urther pr ocee dings. I

would reve rse outrig ht. ¶ 54 The majority

and I ag ree that err or has oc curr ed, and the trial court’ s relianc e on the
cra igslist.orgadver

tisement and all that flowe d from it was improper . We disag ree only on whether there should be a ne w trial.
17No. 1-10-3835

¶ 55 The issue then is whe ther the judg e' s err or in a be nch trial wa s an evide nce e rror , i.e. , hear say err or or a sufficie ncy

of the e vidence err or. ¶ 56 The trial c ourt in its findings er roneously relied on the hear say

evidenc e off

ere d but not allowed in both B ravi’s te stimony that she saw a

n adver tisement for a

differ ent Cerve lo P2C bicycle on c raig slist.org a nd Detec tive Castaneda ’s testimony that a ce ll phone that responde nt was holdingrangwhen he dialed the number listed in the advertiseme nt as substantive evidenc e. Since all of this must be out, all that remains in is the slight circ umstantial evidence consisting of the testimony

of Cedicc i and Gorsuc h. After orig inally

identify ing two dif

fer ent individuals, Cedicci a nd Gorsuch the n identified re spondent in a lineup two day s later. The witnesses could provide only

minimal detail about the incident. They described see ing two ma les drivingby in a vehicle f or a f leetingmoment. The passe ng er, whom they believed c ould have be en re spondent, was holdingonto a nondesc ript triathlon bicycle pa rtially jutting out of the ba ck door of the ca r. Essentially

they saw a man turned a

round in the fr ont seat towar d the bac k holding on to both the
car door and a

bicycle with the tire sticking out. I do not believe this evidenc e alone supports a finding of guilt bey ond a re asonable doubt for the of fense of theft. ¶ 57 At this point , when lef t with mini mal circ umstantial evidence reg ardinga spec ial education student with a learningdisability (ac cordingto the prese ntence repor t in the rec ord) who was 16 at the time and who has a lrea dy serve d his full 18–month t erm of pr obation, Iwould opt to resolve the a

ppare nt inconsistent draftingof appe llant’s briefs by choosingthe most prag matic disposition t o this case. In various sec tions of the briefs, a ppellant re quests either outrig ht reve rsal (br ief pa g e I ., pag e 2, and pa g e 9; re ply brief pa g e 1; and suppleme ntal brief
18No. 1-10-3835

pag e 7) or

reve rsal and r emand ( brief pa g e 9 and pa g e 15; re ply brief pa g e 4; and suppleme ntal brief pa g e 8) f

or fur ther proc eeding s. This ambiguity prese nts an opportunity

to addre ss the more prec ise issue, one a llowing f or a suf ficienc y of the e vidence analy sis, and a subseque nt reve rsal outrig ht. ¶ 58 Ultimately , responde nt is attackingthe trial cour t's de linquency

deter mination based on the evidenc e, and " such an attack is ana logous to a criminal def

endant' s appellate attack on the sufficie ncy

of evide nce to c onvict in a cr iminal bench trial." In re Driv er, 46 I ll. App. 574, 575-76 (1977) ; see a lso In re M alcolm H., 373 I ll. App. 3d 891, 893-94 (2007) ( constitutional protec tion of proof be y ond a re asonable doubt applies to the adjudicatory stag e of juve nile delinquency

proce eding s); People v . Berrier, 362 I ll. App. 3d 1153, 1169-70 (2006) ( defe ndant' s challeng e to the suff

iciency of the e vidence supporting his drug possession conviction was that there was no e vidence that the mater ials discovere d wer e ac tually controlled substanc es and no
cre dible evidenc e to support the conc lusion that he actua lly possessed the dr

ug s, and as to his criminal dama g e to prope rty conviction, there was no proof that he knowing ly

cause d the damag e). Under the se circ umstances, it is our re sponsibili ty to determine whether , afte r viewing the still remaining e vidence in the light most favor able to the pr osecution, any rational trier

of fac t could have f

ound the essential e lements of the c rime beyond a re asonable doubt. In re W .C., 167 I ll. 2d 307, 336 (1995). ¶ 59 Gene rally , the State must prove, bey ond a re asonable doubt, the elements of the substantive offe nse alleg ed in a de linquency petition, and in doing so, the State ma y be entitled to rely upon presumptions or infer ence s. In re W .C., 167 I ll. 2d at 336. To sustain respondent' s
19No. 1-10-3835

conviction for the ft in this case, the State w as re quired to prove that the re spondent knowingly obtained or e x erte d unauthorized control over the spec ific bicy

cle of the owner , intending to perma nently deprive the owner

of the use a

nd benef it of her bicycle. 720 I L CS 5/ 16-1(a )(1) (A) (West 2010). Thef

t require s proof of two me ntal states. People v . Jones, 149 I ll. 2d 288, 296 (1992). The two nece ssary elements of the ft, a prosc ribed a ct committed knowing ly ( People v

. Nunn, 77 I ll. 2d 243, 249 (1979)) a nd the re quisite intent, must coincide. People v . Haissig, 2012 I LApp (2d) 110726, ¶ 26; see People v . Hayne

s, 132 I ll. App. 2d 1031, 1032 (1971) (" [a] person c ould have e x erte d unauthorized control over proper ty knowing ly

without intending to perma nently deprive the owner

of the use of

the prope rty ")
. ¶ 60 This court re cently stated " [a] lthough inter

pretinga diffe rent statute, the I llinois Supreme Court concluded that ' " knowledg e" traditionally a for m of g ener al intent, [was] the re quisite mental state a

pplicable to the pr ovision as a whole.' " People v . Hernande z , 2012 I LApp (1st) 092841, ¶ 31 (quoting People v . Frieberg , 147 I ll. 2d 326, 347 (1992)). ¶ 61 The Hernande

z court we nt on to discuss the use of the knowle dg e re quirement concluding , in a ca se base d on the I llinois I dentity Theft L aw, ( 720 I L CS 5/ 16-G-1 et seq . (West 2008)) that unde r the I llinois statutory scheme , the adve rb " knowing ly " modifie s the verb " uses" and also modifies the subse quent phra se " of anothe r per son. " Hernande z , 2012 I LApp (1st) 092841, ¶¶ 37, 39. ¶ 62 Ibelieve the same c an be sa id about theft. I believe the adver

b "know ingly " modifie s the words " obtained or e x erte d" a nd "una uthorized control" a

nd "intende d to deprive" – none of which the State ha s proven.
20No. 1-10-3835

¶ 63 " ' The State must prese nt sufficient e vidence from which a n infere nce of

knowledg e ca

n be made , and any

infere nce must be ba sed upon established f acts a nd not py ramided on interveninginfere nces.' " In re Keith C., 378 I ll. App. 3d 252, 260 (2007) (quoting People v

. W eiss, 263 I ll. App. 3d 725, 731 (1994)). K nowledg e is distinguishable f rom intent in that it does not nec essitate a show ing of conscious objec tive or aim and c ontemplates wha t the person was " ' subjectively , consciously awa re of .' " People v . Kotli nski, 2011 I L App (2d) 101251, ¶

54 (quoting 1 J ohn F. De cker , I llinois Criminal L aw §§ 2.33, 2.34 ( 2d ed. 1993)) . Coincidentally , proof of responde nt's intent to per manently deprive could include his " use, aba ndonment, or
conce alment of the pr operty , or consist entirely of his initial taking or c ontrol over the pr operty under c ircumstance s sugg esting that he intends to perma nently reta in it." Haissig, 2012 I LApp (2d) 110726, ¶

32. ¶ 64 The re quisite knowledg e and intent f or a the ft cha

rg e may be prove n indirectly

by infere nce or

by deduction made by

the trier of

fac t based upon the f

acts a nd circ umstances of

the
case . People v . Cameron, 2012 I LApp (3d) 110020, ¶ 32. "D irec t evidence has bee n define d as evidenc e which, if

believed, pr oves the e x istence of the fa ct in issue without

inferenceor presumption , wher eas c ircumstantial evidenc e is evidenc e which, w ithout goingdirec tly to prove exis tence of a f

act, g ives rise to a logical inferencethat such fa ct does e x ist." (Empha sis added.) People v . Christ iansen, 118 I ll. App. 2d 51, 56 (1969). ¶ 65 Infer ence s which constitute eleme nts of the offe nse, such a s the requisite state of mind, should be based dir ectly

on established fa cts and not py ramided upon inter

veninginfere nces. People v . Davis, 50 I ll. App. 3d 163, 168 (1977). Ac cordingto the State, "the rec ord re flec ts that
21No. 1-10-3835

the [trial] court dre w reasonable infere nces f rom Ms. Br avi' s and De tective Castane da' s nonhear say testimony , logically conclude d that responde nt had attempted to sell Ms. Waterstra[a]t's bicycle, a nd found that this was yet furthe r evide nce of responde nt's intent to per manently deprive her of

her bic y cle." (Emphase s added.) We note there is no evidence , direc t or circ umstantial, that specifica lly links thi s responde nt to the particular bicycle in question. The bicycle wa s not recove red. ¶ 66 Iam mindful that the findingof a tria l court, in a nonjury case , as her e, is entitled to g reat weig ht beca

use the c ourt is able to observe the witnesses, a ssess their cr edibility and dete rmine the weight to be acc orded the ir testimony
. People v . Gillespie, 276 I ll. App. 3d 495, 499-500 (1995). I do not second-g

uess the cr edibility

deter minations made by

the trial cour

t, nor do I attempt to resolve c onflicts in the testimony any differ ently

than did the trial cour

t. Gillespie, 276 I ll. App. 3d at 500. Ialso rec og nize that a defe ndant ca n be found guilty

of theft solely

on the basis of knowing ly

exerting una

uthorized control over the proper ty of anothe r at the time of arrest , beca

use the c rime of thef

t is not l imited to the origina l taking of the prope rty , but this i s not such a c ase. People v . Alexande r, 93 I ll. 2d 73, 78 (1982); see a lso People v . Price, 221 I ll. 2d 182, 193 (2006). ¶ 67 Her e, in findingresponde nt delinquent based on the ft, the trial cour t noted that the offe nse does not re quire that someone be see n takingproper ty , but that the person knowing ly possesses prope rty

with the intent to permane ntly deprive the rig htful owner of that proper

ty
. ¶ 68 The majority

opines that the dissent seeks to " rec ast the issue pre sented a s rea sonable doubt and re verse responde nt's de linquency adjudication outrig ht, neither side r aised re asonable
22No. 1-10-3835

doubt in its briefs nor

does the re spondent seek the reme dy of outrig ht reve rsal. " Supra ¶ 44 (citingfrom People v . Givens , 237 I ll. 2d 339 (2010); People v . McNeal , 405 I ll. App. 3d 676 (2010); and Gree nlaw v. United States , 554 U.S. 244 (2008)). ¶ 69 The de fense did, however , fully brief due proce ss in his arg ument (brief pag es 10 and 15 and supplementa l brief pa g es 6-7) ag ainst the judg e' s relianc e on hea rsay evidenc e which w as
never admitted for its truth, following up with an ana ly sis of that hear say err or that the e rror

was not harmless (br ief pa g es 14-15) and statingon pag e 14, " Consequently J ovan' s finding of

g uilt cannot stand unle ss consideration of the hea rsay is harmless beyond a re asonable doubt." The defe nse ar g ued it was not har mless and the majority

and I ag ree on that. ¶ 70 In the majority

opinion, the issue of harmless e rror is ex plained, startingat par ag raph 36, as " The re medy

for e rrone ous admission of hear say is rever sal, unless the re cord c lear ly shows that the er ror wa s harmless beyond a re asonable doubt." Supra ¶ 37. The ha rmless err or ana ly sis require s a re asonable doubt determination. The ma jority itself has there fore looked to rea sonable doubt and has a lso found that the er ror wa s not harmless. We ag ree on that. We have c ome to differ ent conc lusions about the outcome. ¶ 71 What the majority ignor es is that when a ll is said and done this is an evidence question with an inadmissible evidence question inside it, a rea sonable doubt question inside that and a sufficie ncy

of the e vidence question at its core. L ike a da ndelion g one to see d, when you blow
awa y all the inadmissible evidence y ou are left with no evidenc e at a ll. ¶ 72 Relying sole ly

on the allowable evidenc e, it cannot be said that the State has pr oved beyond a re asonable doubt that: (1) it was the re spondent in the ca r, whe re two w itnesses
23No. 1-10-3835

positively identified two other youngmen first, then identified de fenda nt in a lineup that defe nse believes w as sug g estive. B ut even if the y saw re spondent holding a bicycle in that ca

r, there is (2) no pr oof re spondent knew the bicycle wa s stolen; (3) no proof it wa s the bicycle in question; (4) no pr oof re spondent exerted unauthor ized control over the pa rticular bic y cle in question; (5) no proof r espondent intende d to sell that bicy cle or any bicycle; and ( 6) no proof responde nt intended to per

manently deprive the owner

of her proper ty
. ¶ 73 Be cause there was insuffic ient evidenc e to prove essential ele ments of the cr ime, we should rever se outright. ¶ 74 Instead, the tria l court re lied on the ver y evidenc e which the court itself did not allow as substantive evidenc e and the n casc aded that evidence into speculative finding s of fa ct to satisfy the intent to permane ntly

deprive element of

theft. I f this error

constituted no more than a n
err oneous evide ntiary

ruling , we would have no choic e but to reve rse a nd rema nd. ¶ 75 Howeve r, no matter how inartfully the def ense makes the point, it has demonstrated that without the cra igslist ad and a ll that flows from it, the only evidenc e lef

t – two witnesses, who at first misidentified the holder of the bicycle a

nd did not describe the bicycle in any sufficie nt detail to distinguish it from what must be many , many bicycles in the a

rea of the oc curr ence , and who ce rtainly

could not and did not testify as to the intent of the bicycle holder , let alone the responde nt – is insufficient to sustain a conviction for the ft. As a suff iciency of the e vidence
case , we a

re f ree to reve rse outrig ht and that is what I would do. ¶ 76 "[W] e will reve rse a criminal convic tion where the evidenc e is so unrea sonable, improbable, or unsatisfactory as to cre ate a

rea sonable doubt as to def endant' s g uilt." People v

. 24No. 1-10-3835

Stewart , 406 I ll. App. 3d 518, 531 (2010) ( People v . Smith , 185 I ll. 2d 532, 542 (1999)). ¶ 77 Howeve r, eve n if we somehow g ot to the cra igslist materia l and consider ed this an evidentiar y err or ca se, the State ha s still not proved mens rea , which bring s us back f ull circle to the suffic iency

of the e vidence . The trial c ourt found that re spondent' s attempt to sell the bicycle "f urther r einforc es" that he had the intent to permane ntly deprive the rig htful owner of that bicycle, a nd ref err ed to the fa ct that the ce ll phone in respondent' s hand ra ngwhen the de tective dialed the number

listed in the classified ad a s "sig nificant e vidence ." T he trial c ourt also found that the circ umstantial evidence showed that re spondent knew the bicycle did not belongto him, that he had no r ight to sell or possess it, and that it believe d responde nt was ac countable f or the theft whe ther he phy sically remove d the bicycle f

rom Br avi' s car

or phy sically

held it in the "g etawa y car ." ¶ 78 Turningto our collea g ues in the Second D istrict, in an identity theft ca se hing ed on knowledg e, Just ice Schostok wrote "the State did not prove [Sanchez] possessed the ne cessa ry
mens rea and thus her c onviction cannot stand." The c ase w as re verse d. People v . Sanchez , 2013 I LApp (2d) 120445, ¶ 47. ¶ 79 The State c ites the followingfac ts in support of the infere nces upon which re spondent' s conviction ar e base d: Bra vi saw a diff

ere nt bicy cle a

nd a phone numbe r in a postingon
cra igslist.org . Ba sed on this posting, B ravi a lerted D etec tive Castaneda , who investig ated the phone number

and lea rned tha t it was service d by

Cricket. The n, Detec tive Castaneda went to an addre ss where he deta ined re spondent and obser ved a Cric ket ce ll phone in respondent' s hand. Detec tive Castaneda

dialed the phone number in the postingand hea rd that ce ll phone ring
. 25No. 1-10-3835

Another pe rson dialed the sa me phone number

and that ce ll phone rangag ain. Subsequently , Cedicci a nd Gorsuch ide ntified responde nt in a lineup. ¶ 80 There was no e vidence that the ce ll phone belong ed to re spondent, that the cr aig slist ad was posted by

responde nt or that responde nt knew about the a d or the phone number on it. And the cr aig slist ad its elf wa s for a differ ent bicycle. ¶ 81 Considering the af oreme ntioned fac ts, in the light most favora ble to the prosec ution, I would conclude that the State' s evidenc e did not allow the trial c ourt to rea sonably infer responde nt's intent to per manently deprive the owner

of her bicycle. People v . Harmon, 2012 I L App (3d) 110297, ¶

17. As the State notes, B ravi " cer tainly did not testify

that the cr aig slist.org posting indicated that a Cer velo P2C was for sa le and that r espondent wa s the seller." The fa ct that Br avi observe d a cr aig slist pos ting f or a Cer velo P2C bicy cle with photog raphs of newe r model Cervelo bicycles a nd a phone numbe r, fa ils to establish, whether by infere nce or deduction, that anyone obtained c ontrol over Water straat' s bicy cle with the intent to per manently deprive her of

it by selling it on cr aig slist. S ee People v . Murray, 262 I ll. App. 3d 1056, 1063 (1994). ¶ 82 Be cause judicial err or re sults in an ex clusion of the testimony of both Br avi and De tective Castaneda , the evidenc e that re mains is circumstantial at best a nd not sufficient to support a finding of delinquenc y . Iwould, like my colleagues in Hernande

z , 2012 I L

App (1st) 092841, ¶ 18, find that althoug h responde nt's a rgument "ma

y be cha rac terized broadly

as conc erningthe sufficie ncy

of evide nce he r ar g ument on this pointhas two fa cets." (Interna l quotation marks omitted.) Here , responde nt's ha rmless err or ar g ument has two fa cets: the e rror was not har

mless
26No. 1-10-3835

and without the er

roneous r eliance on inadmitted evidence the re maining e vidence was insufficient to prove g uilt beyond a re asonable doubt. ¶ 83 Respondent is clea r that he doe s not challeng e the tria l court' s hear say ruling . Put another way , responde nt ag ree s that the trial cour t properly limit ed the pur

pose for which ce rtain testimony was a dmitted. W hat re spondent takes issue with is the trial cour t's e x press re liance on such testimony

to support an infer ence that "f urther r einforc es" the State' s evidenc e of his culpable me ntal state, the a rguable a bsence of which c lear ly

speaks to the suff

iciency of the evidenc e to sustain the conviction. ¶ 84 Finally , Iag ree with my colleagues in an e arlier Hernande z case that we must “under stand g reat defe renc e should be g iven to trial judg es whe n they hear the evidenc e and observe the witnesses. See People v . Furby, 138 I ll. 2d 434, 455 (1990). B ut this defere nce doe s not require a mindless rubber -stamp on eve ry bench tr ial g uilty

verdic t we addr ess. That would be an a bdication of our c onstitut ional responsibility . And we [should] not [ be] reluctant to examine the rec ord for

a lac k of evide nce linkingthe def endant to the c rime cha

rg ed.” People v

. Hernande z , 312 I ll. App. 3d 1032, 1037 (2000). ¶ 85 For

the re asons stated, I

would reve rse outrig ht respondent' s theft conviction.

27