20 20 IL App (1st) 1 73019

- U

FIFTH DIVISION SEPTEMBER 18, 2020

No. 1-17-3019 NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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

- Appell ee ,

v.
CESAR CRUZ , Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.
No. 15 CR 11162
Honorable Joseph M. Claps, Judge P residing

.

JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

O RDER ¶ 1 Held : The d efendant’s conviction for home invasion is affirmed where he did not demonstrate that his jury waiver was invalid and where a rational factfinder could find that the evidence was sufficient to prove his guilt

.No. 1-17-3019

- 2 - ¶ 2 Following a bench trial, the defendant- appellant, Cesar Cruz , was found guilty of two counts of home invasion and two counts of aggravated battery. 1 The trial court merg ed the findings into one count of home invasion and sentenced the defendant to 7.5 year s’ imprisonment. The defendant now appeals, arguing that his jury waiver was invalid and that the evidence was insufficient to sustain his conviction. For the following reasons, we affirm the judgment of the circuit court of Cook County. ¶ 3 BACKGROUND ¶ 4 The d efendant and co - defendant Adan Rodriguez were charged with multiple offenses arising from an incident on June 11, 2015, including attempt murder (720 ILCS 5/8

- 4(a) (West
2014 ); (720 ILCS 5/9

- 1(a) (West 2014 )) (count I) , home invasion (720 ILCS 5/19- 6(a)(1) , (2) (West 2014)) (counts II and III) , residential burglary (720 ILCS 5/19

- 3(a) (West 2014)) (count IV) , aggravated battery causing great bodily harm (720 ILCS 5/ 12- 3.05(a)(1) (West 2014)) (count V) , aggravated battery causing permanent disfigurement (720 ILCS 5/12- 3.05(a)(1) (West 2014)) (coun t VI) , and aggravated battery with a deadly weapon (720 ILCS 5/12

- 3.05(f)(1) (West 2014)) (count VII). ¶ 5 At a pre t rial hearing on July 24, 2015, the trial court arraigned the defendant and informed
him that he had the right to a jury trial . The trial court t wice asked the defendant , “Do you know what a trial by jury is?” Each time, the d efendant responded, “Yes.” ¶ 6 On March 1, 2017, during another pretrial hearing, the following exchange occurred:

1 Co- defendant Adan Rodriguez was found guilty of the same charges following a separate but simultaneous bench trial. He is not a party to this appeal.No. 1-17-3019

- 3 - “ THE COURT: Your case is set for trial

. Do you want a trial by a judge or a trial by a jury? [D EFENSE COUNSEL ] : He ’ s indicating bench trial, your
Honor.
THE COURT: Isn ’ t that your signature on this document entitled jury waiver? THE DEFENDANT: Yes, your Honor. THE COURT: Anybody make any promises and request to get you to waive your right to a trial by a jury? THE DEFENDANT: No, your Honor. THE COURT: Did you make that decision after speaking with your attorney of your own free will?
T HE DEFENDANT: Yes, your Honor.” ¶ 7 The d ef endant ’s signed jury waiver form, dated March 1, 2017, is included in the record on appeal . It states , “I, the undersigned, do hereby waive jury trial and submit the above entitled cause to the Court for hearing.” ¶ 8 That same day, March 1, 2017, a bench tria l commenced. At trial, Carlos Sanchez testified that in June 2015, he lived on the second floor of his parents’ home on the 2300 block of South Ridgeway Avenue in Chicago

. Mr. Sanchez worked the night shift at a restaurant

. Mr. Sanchez knew co -defendant Rodriguez for four years prior to June 2015

. Co -defendant Rodriguez had been in Mr. Sanchez’s apartment approximately 50 times, where the two men smoke d marijuana together. Mr. Sanchez also knew Daniel Garcia , a younger acquaintance of co -defendantNo. 1-17-3019

- 4 - Rodriguez, who had also been in Mr. Sanchez’s apartment before. 2 Mr. Sanchez identified People’s Exhibit No. 1 as a photograph of Mr. Garcia

. ¶ 9 At approximately 2 or 3 p.m. on June 11, 2015 , Mr. Sanchez discovered that his kitchen window was broken. He called the police and decided to not go to work that night because he was concerned that someone had broken in to his house . Mr. Sanchez went to sleep around 10 p.m. A t 11 p.m., he awoke to find three men in his room and became “immediately *** e nraged.” The lights were off and it was dark, but some light c ame through his window. Initially, he did not recognize any of the men . One man was four feet from the bed, another man was going through Mr. Sanchez’s bedroom drawer s , and the third man was standing close to Mr. Sanchez. The third

man , who was “small,” “lightweight,” and wearing black, “bearhugged” Mr. Sanchez and tried to stab him. Mr. Sanchez “blocked” the man and “hit” him, and the man “went down.” Mr. Sanchez then recognize d Mr. Garcia as the man standing four feet away from his bed ; al though he w ore a hoodie and ski mask, Mr. Garcia was a “big guy.” Mr. Sanchez hit Mr. Garcia, whose hoodie fell off, and Mr. Sanchez saw Mr. Garcia’s face. Mr. Sanchez also recognized the man going through the drawer s as co -defendant Rodriguez , who illuminate d the drawer s with a cellular tele phone. ¶ 10 The attackers fled through Mr. Sanchez’s window as his family came upstairs. Mr. Sanchez tried to pursue the men, but his sister and mother stopped him because he was bleeding. Hi s sister called an ambulance, and Mr. Sanchez went to the hospital , where he stayed for three days to receive treatment for four stab wounds, fractured ribs , and a lacerated spleen.

2 Mr. Garcia separately pleaded guilty to home invasion for the incident on June 11, 2015. He therefore was not a co

- defendant in the defendant’s case and is not a party to this appeal.No. 1-17-3019

- 5 - ¶ 11 Detectives spoke with Mr. Sanchez t he morning of June 12, 2015, and showed him a photo

arra y, identified as People’s Exhibit No. 3. Mr. Sanchez identified Mr. Garcia in the photo array . Detectives showed Mr. San c hez another photo array , on June 13, 2015, identified as People’s Exhibit No. 5, in which Mr. Sanchez was unable to identify anyone. On July 6, 2015, detectives showed Mr. Sanchez a nother photo array, identified as People’s Exhibit No. 7, in which he identified the defendant as the man who stabbed him. All the individuals in the July 6, 2015 photo array had long hair. ¶ 12 The photo arrays are included in the record on appeal. Photographs of the defendant were featured in both the June 13, 2015 and July 6, 2015 arrays in the top row, third column position, th ough the defendant’s hair is longer in the photograph used in the July 6, 2015 array. When asked how he identified the defendant in the July 6, 2015 array , Mr. Sanchez said he recognized the defendant based on their “physical interaction .” Mr. Sanchez desc ribed the man who stabbed him

as “lightweight,” “small,” dressed in “all black” and having a “slim” face. His hood was up during the attack, covering his hair . Mr. Sanchez identified the defendant in court as the man who stabbed him. ¶ 13 Mr. Sanchez was famili ar with co -defendant Rodriguez’s cellular tele phone, a “red HTC” tele phone, and identified People’s Exhibit No. 8 as the tele phone. After the attackers fled , Mr. Sanchez saw the red HTC tele phone on the floor in his bed room. Following the incident , Mr. Sanchez discovered that he was missing a watch case and two iPhone boxes

. ¶ 14 The State introduced People’s Exhibit s No. 9 through 23, which Mr. Sanchez identified as photographs of his home and items recovered from his bedroom following the incident. Peop le’s Exhibit No. 15 showed a “bookbag, a TV, and [ co - defendant Rodriguez’s] [tele] phone.” TheNo. 1-17-3019

- 6 - bookbag did not belong to Mr. Sanchez. People’s Exhibit No. 20 depicted the broken blade of a knife, a screwdriver, and shorts, none of which belonged to Mr. Sanc hez. The State also entered into evidence , a CD -R OM containing photographs, one of which Mr. Sanchez identified as depicting co -defendant Rodriguez holding the red HTC tele phone. ¶ 15 On cross

- examination , Mr. Sanchez testified that he told the responding officers he was

unsure who stabbed him, but at trial, he was “clear” that it was the defendant. At the hospital on June 11, 2015 , Mr. Sanchez identified co -defendant Rodriguez and Mr. Garcia to the detectives , but could not identify or describe the third attacker. Mr. Sanchez gave a written statement to police two days after the incident, but it “was not fully correct.” That statement indicated that co defendant Rodriguez “bearhugged” Mr. Sanchez while the third individual went through the drawers. ¶ 16 Mr. Sanchez did not know the defendant prior to the incident. Most of Mr. Sanchez’s injuries were to his back, and he did not know what instrument caused those injuries. Though he initially said co -defendant Rodriguez stabbed him, he was now “correct [ing] ” himself , because after “so many nights of sleeping , ” he knew it was not co -defendant Rodriguez. Mr. Sanchez could not sleep for three months following the incident, and had nightmares about the stabbing eve ry night during that period. ¶ 17 On redirect, Mr. Sanchez reiterated that it was the defendant, not co -defendant Rodriguez, who bearhugged him. Co -defendant Rodriguez escaped out of Mr. Sanchez’s window first, followed by the defendant, and lastly by Mr. Garc ia

. Mr. Sanchez told emergency medical personnel that h e was stabbed with scissors, but at trial he was unsure what instrument his attacker used to stab him.No. 1-17-3019

- 7 - ¶ 18 The court asked Mr. Sanchez whether he saw any of the attackers ’ uncovered faces . He responded that he saw Mr. Garcia’s uncovered face

. ¶ 19 Mr. Garcia testified that he plead ed guilty to a June 11, 2015 home invasion at Mr. Sanchez’s house and was on juvenile probation at the time of trial

. 3 However, h e did not recognize a photograph of Mr. Sanchez and stated that he had never been to the home on the 2300 block of South Ridgeway Avenue. Mr. Garcia knew co -defendant Rodriguez for most of his life and knew the defendant for a year prior to June 11, 2015 . He identified them both in cour t. ¶ 20 Mr. Garcia could not remember if he entered the home on the 2300 block of South Ridgeway Avenue on June 11, 2015 , because he was “under the influence of a lot of drugs.” Mr. Garcia repeated ly stated that he could not remember any d etails of that day , including whether he entered and escaped Mr. Sanchez’s house through a window. He did not recognize the black backpack depicted in People’s Exhibit No. 27 , did not see the defendant carrying i t, and did not know whether it contained two pairs of scissors or a screwdriver. He did not remember having a red HTC tele phone on June 11, 2015 , and did not recognize the red HTC tele phone marked as People’s Exhibit No. 8. ¶ 21 Mr. Garcia did not remember speaking to det ectives at the police station while his parents were present or giving a statement. He did not recall telling the detectives that he broke the window

to Mr. Sanchez’s home on June 11, 2015, because he needed money and marijuana . He also did not recall telling the detectives th at he, co -defendant Rodriguez, and the defendant broke into Mr. Sanchez’s house later that night because they thought he would be at work. Mr. Garcia did not recall stating that the defendant brought a black plastic bag with a screwdriver or that the three

3 Mr. Garcia testified that he was 17 years old on June 11, 2015, and 19 years old at the time of trial.No. 1-17-3019

- 8 - men entered through the second

- floor window

. Mr. Garcia also could not recall stating that the defendant told him to restrain Mr. Sanchez with an extension cor d, or that Mr. Sanchez and the defendan t fought, during which the defendant stabbed Mr. Sanchez with a screwdriver . Finally,
Mr. Garcia did not recall telling detectives that he fled out of the window when he saw Mr. Sanchez’s father enter the room , or that he told co -defendant Rodriguez that he left the red HTC tele phone in Mr. Sanchez’s room. ¶ 22 Mr. Garcia remembered pleading guilty to home invasion during a court proceeding on July 26, 2016 , but did not recall that the prosecutor read the factual basis for the plea into the

reco rd , or that he affirmed that th e factual basis was a fair and accurate recitation of the incident.
On cross -examination, Mr. Garcia stated that he was in custody from the time of his arrest on June 13, 2015, until September 7, 2016, and only pleaded guilty because he “wanted to go home.” ¶ 23 Detective Joseph Fronczak testified that on June 13, 2015, he took Mr. Garcia ’s statement.
Mr. Garcia ’s mother, father, and a Spanish

- speaking officer were present

. Mr. Garcia was Mirandized and did not appear to be under the influence of drugs or alcohol. Detective Fronczak identified People’s Group Exhibit 28 A as an accurate video recording of Mr. Garcia ’s statement on June 13, 2015, which the State published. The video is included in the record on appeal ¶ 24 In the video, Mr. Garcia state d that he and the defendant, whom Mr. Garcia only identifie d by a first name, entered Mr. Sanchez’s house while co -defendant Rodriguez stayed outside. The defendant went to the kitchen while Mr. Garcia went to Mr. Sanch ez’s bedro om and saw him asleep

. The defendant told Mr. Garcia to tie up Mr. Sanchez, but Mr. Garcia refused. Mr. Garcia started going through shoe boxes in Mr. Sanchez’s room because that is where Mr. Sanchez kept his marijuana, and the defendant put shoes in a black plastic bag and threw them out the window.No. 1-17-3019

- 9 - Later, the defendant stood over Mr. Sanchez’s bed, holding a screwdriver. Mr. Sanchez woke up and started an altercation with the defendant , durin g which the defendant stabbed Mr. Sanchez.
Mr. Garcia fle d through the window. ¶ 25 Detective Fronczak further testified that Mr. Sanchez was shown a photo array on July 6, 2015, at hi s home. The photo array differed from the photo array he had viewed on June 13, 2015 ; though each array contained a photograph of the defendant, the photograph of the defendant in the July 6, 2015 photo array was “congruent with the hairstyle” the defendant wore the night of the incident. ¶ 26 The State entered a stipulation that the CD

- ROM marked as People’s Exhibit No. 24 was a fair and accurate recording of data recovered from the red HTC tele phone and that People’s Exhibit No. 29 was a fair and accurate transcript o f Mr. Garcia’s case. The S tate then moved People’s Exhibits Nos. 1 through 29 into evidence. ¶ 27 In the transcript from Mr. Garcia’s case , which is included in the record on appeal, the prosecutor described the factual basis for Mr. Garcia’s guilty plea, including that Mr. Sanchez woul d testify that on June 11, 2015, he awoke to find three men in his bedroom . T wo of the men “began to hit” him

. Mr. Sanchez defended himself and removed the mask from one attacker, who m he recognized as co -defendant Rodriguez. The “individuals then began to stab” Mr. Sanchez “about his body.” Mr. Sanchez later ide ntified Mr. Garcia as “one of the other individuals .” Detective Fronczak would testify that he interviewed Mr. Garcia, who told Detective Fronczak that he and the defendant (identified by first and last name by the prosecutor) entered Mr. Sanchez’s home. Mr. Garcia took co -defendant Rodriguez’s cell ular tele phone, a red HTC tele phone, inside the home . Mr. Garcia went to the bedroom and placed items in a bag, then noticedNo. 1-17-3019

- 10 - Mr. Sanchez was asleep. The d efendant told Mr. Garcia to tie up Mr. Sanchez with an extension cord, but Mr. Garcia refused. Mr. Sanchez awoke and started fighting the defendant, who stabbed
Mr. Sanchez with a screwdriver. At the conclusion of the prosecutor’s recitation, Mr. Garcia agreed that the facts were “a fair and accurate recitation” of the incident. ¶ 28 Defense counsel moved for a directed verdict, arguing that Mr. Sanchez’s identification of the defendant was insufficient to establish his guilt beyond a reasonable doubt. Counsel emphasized that Mr. Sanchez’s testimony in court differed from his statement to police and he did

not see the defendant’s face. The State responded that Mr. Sanchez identified the defendant in the July 6, 2015 photo array and that Mr. Garcia’s video taped statement implicated the defendant. The court denied the motion , and the defense rested. ¶ 29 During closing arguments, defense counsel again argued that Mr. Sanchez’s identification of the defendant was suspect

. He argued that Mr. Garcia only identified someone with the defendant’s first name in his videotaped statement, and therefore did not implicate the defendant directly. He highlighted that Mr. Sanchez said his handwritten statement, made two days after the incident, was not accurate. Counsel questioned “ [w] hat happened” between the June 13 and July 6, 2015 photo arrays that affected Mr. Sanchez’s ability to identify the defendant, and again contended that during his testimony, Mr. Sanchez said he never saw the defendant’s face. Counsel also questioned wh ether Mr. Sanchez’s testimony about the defendant stabbing him could be relied upon because Mr. Sanchez based it on his “nightmare[s] .” ¶ 30 The State argued , in rebuttal , that Mr. Sanch ez identified the defendant in court as the man who bearhugged and stabbed him, and also identified the defendant in the July 6, 2015 photo array. The State also emphasized that Mr. Garcia’s video taped statement implicated the defendant.No. 1-17-3019

- 11 - ¶ 31 The trial court found the defendant not guilty of attempt murder (count I) and aggravated battery causing permanent disfigurement (count VI), but found him guilty of both counts of home invasion, aggravated battery causing great bodily harm, and aggravated battery with a deadly weapon (counts II , III, V, and VII). 4 ¶ 32 The d efendant moved for reconsideration

. At the initial hearing on the motion , the trial

court stated that it saw the video of Mr. Garcia’s statement, and believed his in

- court testimony was “nothing sho rt of perjury.” The m atter was continued, and at a subsequent hearing , the trial court denied the defendant’s motion. ¶ 33 The case proceeded to a sentencing hearing, where the defendant’s presentencing investigation report showed that he was 22 years old at th e time of trial , had no criminal history , and had been expelled from high school as a freshman for absenteeism. The court merged the findings of guilt into c ount II for home invasion (720 ILCS 5/19

- 6(a)(1) (West 2014)) , sentenced defendant to 7.5 years’ imprisonment , and denied his motion to reconsider sentence. ¶ 34 ANALYSIS ¶ 35 We note that we have jurisdiction to review the trial court’s judgment, as the defendant filed a timely notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017). ¶ 36 The defendant presents the following issues: (1) whether his jury waiver was invalid; and (2) whether the State failed to prove him guilty of home invasion beyond a reasonable doubt.

4 In delivering its findings, t he trial court stated that “residential burglary is a lesser included” offense that “merges into count 2,” and “ [y] ou can’t have a separate finding of that.” The court made no further reference to the residential burglary count at trial or at sentencing, a nd the defendant’s mittimus only states that “COUNTS 3, 5, 7 MERGE WITH COUNT 2.”No. 1-17-3019

- 12 - ¶ 37 The defendant fi rst argues that his jury waiver was invalid. Specifically, he claims th e trial

court did not ensure that he made a knowing and understanding jury waiver in light of his youth and inexperience with the criminal justice system

. The d efendant acknowledges that he did not properly preserve this issue through a timely objection and inclusion in a posttrial motion , but
argues that we can review it on plain error review. ¶ 38 Plain error review is appropriate where a clear or obvious error occurred at trial and (1) the evidence was so “closely balanced” that the error , by itself, may have tipped “the scales of justice against the defendant,” irrespective of the error’s seriousness, or (2) the error was so inherently serious that “it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,” regardless of whether the evidence was closely balanced. People v. Belknap , 2014 IL 117094, ¶ 48 . “Whether a defendant’s fundamental right to a jury trial has been violated is a matter that may be considered under the plain error rule.” People v. Bracey , 213 Ill. 2d 265, 270 (2004) . First , we must determine whether a clear or obvious error occurred. People v. Reese , 2017 IL 120011, ¶ 60. ¶ 39 A defendant’s right to a jur y trial is guaranteed by the U nited States Constitution , and a defendant’s decision to waive this right and proceed by bench trial must be done knowing ly and understandingly . U.S. Const

. , amends. VI, X IV; Bracey , 213 Ill. 2d at 269 . The trial court must

ensure that the defendant’s waiver is proper, but there is no established set of admonishments. People v. Bannister , 232 Ill. 2d 52, 66 (2008) . Generally, the trial court should ensure that the defendant “ (1) understands he is entitled to a jury trial, (2) understands what a jury trial is, and (3) wishes to be tried by a jury or by the court without a jury.” People v. West , 2017 IL App (1st) 143632, ¶ 15 (citing People v. Chitwood , 67 Ill. 2d 443, 448

- 49 (1977)). On appeal, the defendantNo. 1-17-3019

- 13 - has the burden to prove his jury waiver was invalid. People v. Reed , 2016 IL App (1st) 140498, ¶ 7 . A signed jury waiver form is evidence that a defendant inten tionally waive d his right, but is not conclusive of the issue

. Id. Because the facts underlying this claim are not in dispute, our review is de novo

. Bannister , 232 Ill. 2d at 66. ¶ 40 The record shows that , at a pretrial hearing on July 24, 2015, the trial court informed the defendant of his right to a jury trial, and the defendant twice affirmed that he understood what a jury trial was. Immediately before trial on March 1, 2017, the trial court asked the defendant whether he wanted “a trial by a judge or a trial by a jury?” After defense counsel stated that the defendant wanted a bench trial, the trial court asked the def endant whether he signed the jury waiver form , to which the defendant answered affirmatively . On further questioning by the trial court, the defendant agreed that no one promised him anything in order to waive his right to a jury trial and that he made the decision voluntari ly after consulting with his attorney. The signed jury waiver form states that the defendant chose to “waive jury trial and submit the above entitled cause to the Court for hearing.” ¶ 41 W e find that the defendant has not demonstrated that his jury waiver was invalid . The record shows that the trial court ensured that the defendant knew that he had a right to a jury trial and that he also knew what a jury trial was, and the defendant volu ntarily chose a bench trial. While the court did not discuss the difference between a bench and a jury trial, the defendant executed a valid jury waiver form, which is competent evidence of his intent to waive his right to a jury trial. Reed , 2016 IL App (1st) 140498, ¶ 7. That form explained that, by signing the waiver, the defendant would submit his case to a hearing by the court without a jury. Additionally, the court ensured that the defendant made his decision in consultation with his attorney. TheNo. 1-17-3019

- 14 - d efendant’s argument that he was young and inexperienced with the criminal justice system at the time of trial does not establish , in and of itself , that his waiver was unknowing or involuntary . The burden is on the defendant to establish the claim , and the facts and circumstances of this case show that the trial court appropriately admonished the defendant and that the defendant made a valid waiver. See id. ¶ 42 The d efendant directs our attention to People v. Johnson , 2019 IL App (1st) 162517 , where a jury waiv er form appeared in the record but the trial court did not explain to the defendant that he had the right to a jury trial or what that right entailed, and i nstead only asked defe nse counsel whether the case would proceed by a bench or jury trial. Johnson , 2019 IL App (1st) 162517, ¶¶ 4- 5, 15 -19. H ere, in contrast , the trial court expressly af firmed that the defendant: (1) knew what a jury trial was ; (2) knew he was entitled to a jury trial ; and (3) voluntarily wanted to waive his right to a jury trial

. See West , 2017 IL App (1st) 143632, ¶ 15. ¶ 43 The d efendant argues that the trial court’s question, “ Did you make that decision after speaking with your attorney of your own free will? ” could be interpreted as asking whether the defendant spoke to his attorney vo luntar il y, not whether he waived his right to a jury trial voluntarily. In context, however, the court made this statement while specifically discussing the defendant’s jury waiver . Moreover, t he record contains no indication that this question, or any other question respecting the defendant’s right to a jury trial, confused the defendant. We decline to seek an interpretation of the trial court’s question which is clearly at odds with the contex t and content of the discussion. He has , thus, failed to meet his burden of demonstrating that his jury waiver was invalid. Without an error, there can be no plain error, and the defendant’s argument therefore fails.No. 1-17-3019

- 15 - ¶ 44 The d efendant next argu es that the Sta te failed to prove him guilty of home invasion beyond a reasonable doubt. He claims that the evidence at trial was insufficient to sustain his conviction because Mr. Sanchez’s identification testimony and Mr. Garcia’s video taped statement were unreliable. ¶ 45 When reviewing the sufficiency of the evidence, the reviewing court must determine whether any rational factfinder , viewing the evidence in the light most favorable to the State, could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 319 (1979) ; People v. Drake , 2019 IL 123734, ¶ 21. The reviewing court must not substitute its judgment for that of the factfinder on matters of witness credibility or the weight of the evidence. People v. Hardman , 2017 IL 121453, ¶ 37. Reversal is improper unless the “evidence is so unreasonable, improbab le , or unsatisfactory” that it creates reasonable doubt of the defendant’s guilt. People v. Newton , 2018 IL 122958, ¶ 24. ¶ 46 We first consider Mr. Sanchez’s identification, using the familiar framewor k established
in Neil v. Biggers , 409 U.S. 188, 199

- 200 (19 72) . Pursuant to Biggers , an eyewitness identification is weighed based on the totality of the circumstances, with particular consideration given to (1) the witness’ opportunity to view the offender a t the time of the incident, (2) the witness’ degree of

a ttention during the incident , (3) the accuracy of previous description s of the offender by the witness , (4) the witness’ degree of certain ty in his identification , and (5) the time lapse between offense and identification

. People v. Macklin , 2019 IL App (1st) 161165 , ¶ 22 (citing In re M.W. , 232 Ill. 2d 408, 435 (2009)). “ The opportunity to view the offender is the most important factor. ” People v. Davis , 2018 IL App (1st) 152413, ¶ 56

. The identification testimony of a single witness , if positive and credible, can sustain a conviction. People v. Gray , 2017 IL 120958, ¶ 36.No. 1-17-3019

- 16 - ¶ 47 When considering the opportunity to observe, courts weigh “ ‘ whether the witness was close enough to the accused for a sufficient period of time under conditions adequate for observation. ’ ” People v. Corral , 2019 IL App (1st) 171501 , ¶ 77 (quoting People v. Carlton , 78 Ill. App. 3d 1098, 1105 (1979) ) . Here, Mr. Sanchez was in close proximity to his attackers during the physical altercation and the room was illuminated by light from the window. Although, on questioning by the trial court, Mr. Sanchez stated that he only saw Mr. Garcia’s uncovered face, Mr. Sanchez described the defendant’s physical characteristics at trial

-- small, lightwei ght, and having a slim face. A witness’ ability to describe physical characteristics apart from facial features

can suggest “adequate opportunity to view” and contribute s to the reliability of an identification.
See People v. Camel , 59 Ill. 2d 422, 432 (19 74) ( a witness’ identification based on physical characteristics besides the defendant’s face, including height and build, could be deemed reliable). Ultimately, because it is the factfinder ’s responsibility to weigh conflicting evidence and the evidence a llows the inference that Mr. Sanchez saw the defendant’s face and other physical characteristics , we find that a rational factfinder could have weigh ed Mr. Sanchez’s opportunity to view the defendant, in favor of reliability. ¶ 48 Mr. Sanchez’s testimony describing his degree of attention shows that , th ough he was “enraged” to find the men in his room, his attackers had his undivided attention

. He relayed specifics about the incident and his attackers, including the details of his physical alter cation with the defendant and Mr. Garcia , the means of escape used by the attackers , and that one man used the red HTC tele phone to search th rough drawer s. The d efendant argues that Mr. Sanchez focused solely on the other attackers . According to Mr. Sanche z’s testimony, however, all three attackers were in the same confined space during the incident , and as already noted, Mr. Sanchez describedNo. 1-17-3019

- 17 - the defendant ’s physical characteristics

. A rational factfinder could find that Mr. Sanchez had a high degree of attention to both the situation generally and the defendant specifically , despite the initial shock of the situation . See People v. Robinson , 206 Ill. App. 3d 1046, 1052 (1990) (“Excitement, rather than detract from an identification, could incr ease the powers to observe .”)

. ¶ 49 The third Biggers factor is not probative because Mr. Sanchez did not give a prior description of the defendant before he was arrested. ¶ 50 Regarding the degree of certainty, the record shows that Mr. Sanchez was initially unable to identify the defendant in the June 13, 2015 photo array , but he later identif ied the defendant in the July 6, 2015 photo array and again in court. The d efendant argues that successive photo arrays containing one common person, whose photograph was located in the same position in each array , should be considered suspect. In People v. Hernandez , 312 Ill. App. 3d 1032, 1034 (2000) , the witness did not initially identify the defendant in a photo array before identifying him in a subsequent array

. We held that the “ photo array procedure inexorably led ” to the witness later identifying the defendant in a lineup. Id. at 1037. This case differs from Hernandez , however, because in that case , the witness was in a school bus 90 feet away from the defendant, and could only see the defendant’s “profile .” Id. at 1036. In this case , by contrast, Mr. Sanchez was in close proximity to his attacker, and was confident at trial that the defendant stabbed him based on the defendant’s “slim” face and slight stature

. This testimony suggests that Mr. Sanchez ’s photo array and in

- court identifications were based on his own observations and not the product of improper suggestion . A ccordingly, we find that a rational factfinder c ould weigh this factor in favor of reliab il ity

.No. 1-17-3019

- 18 - ¶ 51 Finally , the length of time between the incident and identification favors reliability

. Mr. Sanchez identif ied the defendant in the July 6, 2015 photo array , which occurred approximately 25 days after the inc ident

. Similar, and even longer, period s of time have been found to not constitute a significant time lapse such that it impacts an identification’s reliability

. See People v. Slim , 127 Ill. 2d 302, 313

- 14 (1989) ( gathering cases where identifications made a month or longer after an incident were not suspect). 5 ¶ 52 Although conflicting inferences could arguably be drawn from the record , there was sufficient evidence from which a rational factfinder could have credited Mr. Sanchez’s identification of the defendant. ¶ 53 The d efendant also argues that Mr. Garcia’s videotaped statement should be rejected as unreliable accomplice testimony. ¶ 54 Respecting the weight and credibility of accomplice testimony, the supreme court has found that while “the testimony of an accomplice witness has inherent weaknesses and should be accepted only with caution and suspicion,” the testimony is “sufficient to sustain a criminal conviction if it convinces [the factfinder] of the defendant ’ s guilt beyond a reasonable doubt.” People v. Tenney , 205 Ill. 2d 411, 4 29 (2002). Accomplice testimony may be strengthened when corroborated by other evidence in the record. People v. Holmes , 141 Ill. 2d 204, 242 (1990). ¶ 55 The trial court found that Mr. Garcia ’s video taped statement was a credible account of the incident, and described Mr. Garcia’s trial testimony as “nothing short of perjury” at the hearing on the defendant’s motion for reconsideration

. The d efendant argues that Mr. Garcia’s videotaped

5 To the extent that the defendant’s brief cites scholarly materials regarding memory and eyewitness testimony, we note that we cannot consider these materials because they were not part of the record at trial. See People v. Heaton , 266 Ill. App. 3d 469, 476 (1994).No. 1-17-3019

- 19 - statement is incredible because Mr. Garcia gave it under coercive circumstances, but t he trial court

saw Mr. Garcia in court and in the video taped statement , and found the statement credible with full knowledge of its circumstances. Add itionally, though Mr. Garcia only referred to the defendant by his first name in the videotaped statement , the trial court was better positioned to weigh this evidence alongside the other evidence and testimony at trial , and apparently had no trouble deter mining that Mr. Garcia was referring to the defendant . These are considerations regarding the weight and credibility of evidence, and w e can not substitute our judgment for that of the factfinder on such matters

. See Hardman , 2017 IL 121453, ¶ 37. ¶ 56 T here is also evidence corroborating Mr. Garcia ’s video taped statement. In his statement, Mr. Garcia d iscussed going through shoe boxes and that the defendant took some items from them.
At trial, Mr. Sanchez testified that some boxes and items were missing from his room. Additionally, Mr. Garcia said that the defendant stood over Mr. Sanchez’s bed while holding a screwdriver, and then had a physical confrontation with Mr. Sanchez . This mirrors Mr. Sanchez’s testimony about the physical altercati on between him and the defendant. This corroborati on supports the trial court’s decision to credit Mr. Garcia ’s video taped statement despite his status as an accomplice. ¶ 57 In sum, a rational factfinder could have found that the evidence at trial was sufficie nt to find that the third attacker was the defendant, and therefore find the defendant guilty of home invasion beyond a reasonable doubt. Accordingly, we affirm the defendant’s conviction

. ¶ 58 CONCLUSION ¶ 59 For the for egoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 60 Affirmed

.