FOURTH DIVISION February 13, 2014

No. 1-10-3835

In re JOVAN A., a Minor ) Appeal from the (The People of the State of Illinois, ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) No. 10 JD 3836 v. ) ) Honorable Jovan A., a Minor, ) Lori Wolfson, ) Judge Presiding. Respondent-Appellant). )

JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justice Lavin concurred in the judgment and opinion. Justice Pucinski dissented, with opinion.

OPINION

¶1 Following a bench trial, Jovan A. was adjudicated delinquent and sentenced to 18 months'

probation. Respondent contends on appeal that the trial court improperly relied on hearsay,

specifically, the content of a craigslist.org advertisement, to find that he committed theft.1 For

the reasons that follow, we reverse respondent's conviction and remand this cause for further

proceedings.

¶ 2 BACKGROUND

¶3 Lori Bravi testified that she borrowed a Cervelo P2C triathalon bicycle from Elizabeth

Waterstrat. At approximately 3:35 p.m. on July 18, 2010, she parked her car near 1652 West

1 This case was recently reassigned by the court. No. 1-10-3835

Cortland Avenue in Chicago, Illinois, and left the bicycle attached to a rack on her trunk while

she entered a restaurant. Upon her return less than 10 minutes later, the bicycle was missing.

She found a streak of green paint on her rear bumper.

¶4 That night, Bravi searched craigslist.org for the bicycle. She explained that craigslist.org

is "a website where people go to list items for sale." Respondent made several hearsay objections

when the State examined Bravi about the website's content. The court overruled these

objections, noting, "I will not allow it for the truth of the matter asserted, but I will allow it to

explain the steps that were taken in pursuit of an arrest." Bravi then testified that she discovered

an advertisement for a Cervelo P2C bicycle resembling Waterstrat's on craigslist.org. The

advertisement included a telephone number and four photographs of Cervelo P2 bicycles, though

not the P2C model. She then used an Internet service to find the address associated with the

telephone number listed in the advertisement. Bravi provided the telephone number, address,

and advertisement to Detective Castaneda at Area 5 police headquarters.

¶5 Johana Cedicci testified that a sedan carrying respondent passed within 10 feet of her and

Piper Gorsuch2 near the 1600 block of Cortland Avenue at approximately 3:40 p.m. on July 18,

2010. Respondent was turned around in the front passenger seat, holding onto a "triathalon

bicycle" that jutted out of the open rear door. It was a sunny afternoon, and nothing obstructed

her view of respondent. On July 22, 2010, Cedicci viewed a photo array and a five-person lineup

and tentatively identified two of the subjects. Respondent was not represented in either the photo

2 There is some confusion as to whether her name is "Piper T. Gorsuch" or "Piper Tgorsuch." We have opted for "Gorsuch."

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array or the lineup. On July 23, 2010, she viewed a second five-person lineup and positively

identified respondent as the front seat passenger.

¶6 Piper Gorsuch testified that, at approximately 3:40 p.m. on July 18, 2010, she and Johana

Cedicci were walking along the 1600 block of Cortland Avenue when an older, electric teal

Japanese sedan disregarded a stop sign. Respondent sat in the front passenger seat with the

window rolled down and was holding onto a Cervelo triathalon bicycle that stuck out of the open

rear door. It was a bright, clear day, and respondent passed within 10 feet of her. Nothing

obstructed Gorsuch's view of respondent. On July 22, 2010, Gorsuch viewed a photo array and

lineup, but could not make a definite identification. On July 23, 2010, she viewed a second

lineup and identified respondent as the front seat passenger.

¶7 Detective Jose Castaneda testified that Bravi, his former neighbor, contacted him

regarding a stolen bicycle on July 19, 2010. Bravi told him that she believed the bicycle was

being sold on craigslist.org, and Castaneda viewed the advertisement. When the State examined

Castaneda regarding the advertisement's content, respondent made a hearsay objection. The State

responded that the advertisement was not being offered for the truth of the matter asserted, but

rather to show how the detective proceeded with his investigation. The trial court allowed the

testimony for that limited purpose. Castaneda further testified that he performed a database

search using the telephone number listed in the advertisement and discovered related names,

addresses, and car registration information.

¶8 On July 23, 2010, Castaneda went to the 1600 block of North Oakley Avenue, where he

found a car matching one of the witness's descriptions. He detained respondent and another

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Hispanic male, who were sitting in the front seat. He further testified that, when he dialed the

telephone number listed in the craigslist.org advertisement, respondent's cellular telephone rang.

Respondent made another hearsay objection, which the trial court overruled, stating that the

testimony would be allowed for a limited purpose.

¶9 On July 22, 2010, Castaneda showed Cedicci and Gorsuch a photo array, and they

identified Miguel and Renee Salsedo. Later that day, Castaneda conducted a physical lineup with

the Salsedos as subjects, but neither Cedicci nor Gorsuch was able to identify them. Respondent

was not represented in either the photo array or the lineup. The following day, Castaneda

arranged a second lineup, and Cedicci and Gorsuch identified respondent.

¶ 10 The parties stipulated that Elizabeth Waterstrat's bicycle had a value of between $5,000

and $6,000, and that neither she nor Bravi consented to respondent taking it.

¶ 11 During its oral pronouncement, the trial court noted that Bravi "did some independent

investigation" and, as she "looked through some websites he she [sic] was able to see a picture of

a bicycle that closely resembled the bike that was taken from her and she contacted her former

neighbor, who was a detective, and the investigation proceeded from there." The court

continued:

"[Respondent's] attempt to sell the bicycle further reinforces that he had

the intent to permanently deprive the true owner of that bicycle.

When they called the number in the ad for sale, that phone rang in the

minor's hand. That is significant evidence. Circumstantial evidence shows the

minor knew the bicycle was not his. He did not have the right to be selling it,

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possessing it ***."

The trial court adjudicated respondent delinquent and sentenced him to 18 months' probation.

This appeal followed.

¶ 12 ANALYSIS

¶ 13 Respondent contends on appeal that the trial court improperly relied on hearsay evidence,

specifically, the content of a craigslist.org advertisement, in finding that he committed theft. The

State argues that respondent forfeited this issue and, alternatively, that no hearsay testimony was

admitted. We hold that the trial court improperly admitted and relied on the content of the

craigslist.org advertisement. Because this error was not harmless, we reverse and remand this

cause for further proceedings.

¶ 14 A. Forfeiture

¶ 15 We must first determine whether respondent preserved this issue for appellate review.

The State maintains that respondent forfeited this argument when he failed to object during the

trial court's oral pronouncement. Respondent claims that the trial court's reliance on hearsay

evidence constituted plain error.

¶ 16 Generally, to preserve an issue for appeal, a criminal defendant must object at trial and

raise the issue in a posttrial motion. People v. Herron,

(2005). In juvenile

proceedings, the respondent must object at trial, but need not include the issue in a post-

adjudication motion. In re M.W.,

(2009). In this case, respondent timely and

repeatedly objected during Bravi's and Detective Castaneda's testimony to the admission of

hearsay. These objections were sufficient to preserve this issue for review.

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¶ 17 The State acknowledges these objections, but argues that respondent "did not object when

the trial court allegedly relied on the purported hearsay for the truth of the matter asserted to

establish respondent's identity as the offender." The State cites no authority for the proposition

that a respondent must object during a court's oral pronouncement to preserve an evidentiary

issue, and no such authority appears to exist. See People v. Ford,

(1998)

(reviewing courts need not address arguments that lack citation to relevant authority); see also Ill.

S. Ct. R. 341(h)(7) (eff. July 1, 2008) (argument must be supported by citation to authority).

Accordingly, we reject the State's forfeiture argument.

¶ 18 B. Standard of Review

¶ 19 We must next determine the appropriate standard of review. Relying on People v.

Chapman,

(2000), respondent contends that, because "this issue concerns the

judge's compliance with the law, and not determinations of credibility, this Court's review is de

novo." Chapman addressed a fourth amendment issue wholly unrelated to the instant evidentiary

question. Chapman,

. The portion cited by respondent merely sets forth the

general proposition that purely legal issues are reviewed de novo.

Because it does not

concern the admission of, and reliance on, hearsay, we find Chapman unavailing.

¶ 20 The State argues that this issue should be reviewed for abuse of discretion. We agree.

Evidentiary rulings are within the sound discretion of the trial court and will not be reversed

absent an abuse of discretion. People v. Caffey,

(2001). Specifically, Illinois

courts apply an abuse-of-discretion standard when reviewing a trial court's decision regarding the

admission of hearsay. See, e.g., Caffey,

; People v. West,

, 164-65

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(1994). An abuse of discretion will be found only where the trial court's ruling is arbitrary,

fanciful, or unreasonable, or where no reasonable person would take the view adopted by the trial

court. People v. Patrick,

(2009).

¶ 21 C. Hearsay Analysis

¶ 22 Respondent contends that the trial court admitted Bravi's and Detective Castaneda's

testimony regarding the content of the craigslist.org advertisement to show the course of their

investigation, but improperly considered that testimony for the truth of the matter asserted. The

State argues that no out-of-court statements were admitted, because neither Bravi nor Detective

Castaneda testified regarding the content of the craigslist.org advertisement.

¶ 23 Hearsay is an out-of-court statement offered in court to prove the truth of the matter

asserted. Caffey,

. Hearsay is generally inadmissible, unless it falls within an

exception to the rule.

. One such exception holds that police officers may testify to

information they received during the course of an investigation to explain why they arrested a

defendant or took other action. People v. Rush,

(2010). Such testimony is

not hearsay, because it is offered to show the steps an officer took rather than for the truth of the

matter asserted.

Under the course-of-investigation exception to the hearsay rule, an officer

may not testify to information beyond what is necessary to explain his or her actions. People v.

Edgecombe,

(2000). Nor may an officer testify to the content of any

statements he received. People v. Gacho,

(1988).

¶ 24 Here, we must determine whether Bravi's and Detective Castaneda's testimony regarding

the content of a craigslist.org advertisement was admissible to show the course of their

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investigation. We examine their statements separately.

¶ 25 1. Bravi

¶ 26 At trial, Bravi testified that she discovered a craigslist.org advertisement for a Cervelo

P2C bicycle similar to Waterstrat's. She explained that craigslist.org is a website where items

may be listed for sale. Bravi further stated that the advertisement contained four photographs of

Cervelo bicycles, though they depicted other Cervelo models. Finally, she testified that she

recorded the telephone number listed in the advertisement and, through research, determined the

address that corresponded with that number. Over respondent's objection, the trial court allowed

her testimony "to explain the steps that were taken in pursuit of an arrest."

¶ 27 Bravi's testimony regarding the advertisement's content constituted hearsay. Illinois

courts have long held that hearsay includes written out-of-court statements. People v. Carpenter,

(1963) (hearsay includes written evidence). Further, hearsay includes both

matters directly asserted and matters the declarant necessarily implicitly intended to express.

People v. Thomas,

(1997). The statement here consisted of the

advertisement's written content and the implication that a Cervelo P2C bicycle was for sale and

that interested parties could contact the seller via the telephone number listed.

¶ 28 The trial court recognized that the State was offering an out-of-court statement, but

admitted it to show course of investigation, noting that Bravi may "explain the steps that were

taken in pursuit of an arrest." Police officers may testify to information they received during the

course of an investigation to explain why they arrested a defendant or took other action. Rush,

. Such testimony is not hearsay, because it is offered to show the steps an

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officer took rather than for the truth of the matter asserted.

¶ 29 Bravi, however, was not a police officer. She was a layperson conducting her own

private investigation. The State argues that Bravi's testimony was "analogous to a situation

where a police officer testified about the course of his or her investigation" and advocates the

extension of this exception to laypersons. The State cites no authority for this proposition, and

none appears to exist. See Ford,

(reviewing courts need not address

arguments that lack citation to relevant authority); see also Ill. S. Ct. R. 341(h)(7) (eff. July 1,

2008) (argument must be supported by citation to authority).

¶ 30 Moreover, we see no need to address whether the course-of-investigation exception

should be extended to laypersons. By any measure, Bravi's testimony was inadmissible, as it

exceeded the bounds of the course-of-investigation exception, where she testified to the

advertisement's content. People v. Jones,

(1992) (substance of statement

normally inadmissible under course-of-investigation exception); People v. Morgan,

(1991), rev'd on other grounds, Morgan v. Illinois,

(1992) (same); Gacho,

("Had the substance of the conversation *** been testified to, it would have

been objectionable hearsay."). Accordingly, Bravi's testimony regarding the content of the

craigslist.org advertisement constituted hearsay and should not have been admitted at trial.

¶ 31 2. Detective Castaneda

¶ 32 Detective Castaneda testified that he spoke to Bravi, who told him that Waterstrat's

bicycle was being sold on craigslist.org. Upon viewing the website, he found a telephone

number, and based on that number was able to obtain related names, addresses, and car

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registration information. He further testified that, when he arrested respondent, he called the

telephone number listed in the advertisement, and respondent's cellular telephone rang.

Respondent repeatedly objected to Detective Castaneda's testimony. The trial court again

recognized that the State sought to offer an out-of-court statement, but admitted the testimony to

show "how the detective proceeded with his investigation."

¶ 33 Unlike Bravi, Detective Castaneda was a police officer acting in the line of duty. In order

for him to explain the course of his investigation, it was necessary for him to testify that, after

viewing a craigslist.org advertisement, he went to the 1600 block of North Oakley Avenue,

where he discovered a car matching the description he received and subsequently detained

respondent. Had the detective's testimony been limited to this information, it would have been

admissible, even though the trier of fact could have inferred that the advertisement implicated

respondent. See Gacho,

(testimony admissible even though the inference to be

drawn therefrom is that the information motivated the officer's conduct).

¶ 34 But Detective Castaneda also testified regarding the advertisement's content.

Specifically, he stated that Bravi told him that Waterstrat's bicycle was being sold on

craigslist.org and that respondent's cellular telephone rang when he called the number listed in

the advertisement. Generally, under the course-of-investigation exception, an officer may not

testify to a statement's content. Jones,

(substance of statement normally

inadmissible under course-of-investigation exception); Morgan,

(same);

Gacho,

(same).

¶ 35 In People v. Jura,

(2004), this court reversed and

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remanded for a new trial, where the trial court improperly admitted the content of a police radio

message under the course-of-investigation exception. The Jura court noted that the substance of

the message "directly impacts the very essence of the dispute: whether the defendant was the man

who possessed the gun."

. In this case, the trial court admitted the content of a

craigslist.org advertisement under the course-of-investigation exception. Here, as in Jura, the

content of the craigslist.org advertisement directly impacts the very essence of the dispute:

whether respondent was the person who took Waterstrat's bicycle. Further, the advertisement's

content was not necessary to explain the course of Detective Castaneda's investigation. See

Edgecombe,

(under the course-of-investigation exception to the hearsay

rule, an officer may not testify to information beyond what is necessary to explain his or her

actions). Because it was inadmissible under the course-of-investigation exception, the

advertisement's content constituted hearsay and should not have been admitted at trial.

¶ 36 D. Harmless Error Analysis

¶ 37 Because error occurred, we must engage in a harmless error analysis. The remedy for

erroneous admission of hearsay is reversal, unless the record clearly shows that the error was

harmless. People v. Miles,

(2004). When examining whether the

admission of hearsay was harmless, reviewing courts must ask whether there is a reasonable

probability that the trier of fact would have acquitted the defendant had the hearsay been

excluded. People v. Warlick,

(1998).

¶ 38 The State was required to prove that respondent knowingly obtained or exerted

unauthorized control over Waterstrat's bicycle, which had a value exceeding $300, and that he

11 No. 1-10-3835

did so with the intent to permanently deprive Waterstrat of her bicycle. 720 ILCS 5/16-

1(a)(1)(A) (

). There were only two contested issues at trial: (1) whether respondent

was the front seat passenger in the teal sedan; and (2) whether the bicycle in the teal sedan was

Waterstrat's.

¶ 39 Regarding the first question, the trial court credited Cedicci's and Gorsuch's

identifications of the respondent as the front seat passenger: "The witnesses were clear,

uncontroverted in their observations [and] their ability to see the minor respondent's face***."

The court also discounted the only evidence that undercut these identifications, finding that the

photo array "was not done in the police station and it was not done under circumstances that I

believe support the reliability of that identification." Thus, even excluding Bravi's and Detective

Castaneda's hearsay testimony, there was sufficient evidence that respondent was the front seat

passenger in the teal sedan.

¶ 40 Turning to the second question, although no one observed respondent taking Waterstrat's

bicycle, and the bicycle was not recovered, the State presented circumstantial evidence that the

bicycle in the teal sedan was Waterstrat's. Specifically, Gorsuch testified that the bicycle in the

sedan was a Cervelo triathalon bicycle, the same as Waterstrat's. The bicycle was seen on the

1600 block of West Cortland Avenue, where the offense took place, approximately five minutes

after the bicycle was taken. Additionally, rather than being mounted to a rack, the bicycle jutted

haphazardly out of the car's open rear door.

¶ 41 It is possible that a trier of fact could find, based on this evidence, that the bicycle in the

teal sedan was Waterstrat's. But the trial court's oral pronouncement did not show reliance on

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this evidence. Instead, its stated reasoning rested almost entirely on hearsay. During its oral

pronouncement, the court noted that Bravi "did some independent investigation on her own to try

to determine what happened to the bicycle. As she looked through some websites he she [sic]

was able to see a picture of a bicycle that closely resembled the bike that was taken from her

***." The court further found that, "When they called the number in the ad for sale, that phone

rang in the minor's hand. That is significant evidence. Circumstantial evidence shows that minor

knew the bicycle was not his. He did not have the right to be selling it [or] possessing it ***."

Given the trial court's express and nearly exclusive reliance on hearsay in addressing this

question, we find that there is a reasonable probability that the trier of fact would have acquitted

respondent had the hearsay been excluded.

¶ 42 In reaching this conclusion, we recognize that, unlike in a jury trial, when a judge sits as

the trier of fact, we must presume that he or she will only consider competent evidence. People

v. Naylor,

(2008). This presumption is overcome, however, where the

record affirmatively shows that the judge considered improper evidence.

Here, the record

affirmatively shows that the trial judge relied heavily on the hearsay content of the craigslist.org

advertisement. Indeed, the trial judge did not expressly rely on any other evidence in finding that

the bicycle in the teal sedan was Waterstrat's. Accordingly, we find that the presumption that the

trial judge relied only on competent evidence has been overcome.

¶ 43 The outcome would likely have been different had the trial court not expressly relied on

hearsay during its oral pronouncement. For instance, had the court forgone a lengthy

pronouncement, or relied in its pronouncement upon properly admitted evidence, we would

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likely find the error harmless. Compare In re E.H.,

(2007) (error

not harmless where trial judge expressly relied on inadmissible hearsay), and People v. Johnson,

(1998) (same), with People v. Yancy,

(2005)

(error harmless where there was no evidence to overcome the presumption that the trial judge

disregarded hearsay testimony), and People v. Cassell,

(1996) (same).

Here, as in every case, we do not know the full basis of the trial judge's factual findings. We

know only what the judge stated in her oral pronouncement. Based on that pronouncement, we

know that the judge relied heavily on hearsay to find that the bicycle in the teal sedan was

Waterstrat's. Accordingly, we must reverse and remand for a new trial.

¶ 44 While the dissent seeks to recast the issue presented as reasonable doubt and reverse

respondent's delinquency adjudication outright, neither side raised reasonable doubt in its briefs,

nor does respondent seek the remedy of outright reversal that the dissent would give. Indeed, the

phrase "outright reversal" appears nowhere in the six briefs filed in this case. Rather, respondent

repeatedly asks this court for reversal and "remand for further proceedings." The parties also

devote considerable attention to forfeiture and plain error arguments that would be irrelevant to a

reasonable doubt issue. See People v. Enoch,

(1988) (criminal defendants

need not preserve reasonable doubt for appellate review). We should not ignore the issues raised,

briefed, and argued by the parties, and without input from them, decide the case on a basis that

was not addressed by the parties. See People v. Givens,

(2010)

(vacating the appellate court's judgment and remanding for further proceedings, where the court

ignored issues raised by the parties and sua sponte considered an issue not raised, briefed, or

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argued); People v. McNeal,

(2010) ("a reviewing court should not

normally search the record for unargued and unbriefed reasons to reverse a trial court judgment"

(emphasis and internal quotation marks omitted)); see also Greenlaw v. United States,

(2008) (" '[Courts] do not, or should not, sally forth each day looking for wrongs to

right. We wait for cases to come to us, and when they do we normally decide only questions

presented by the parties.' " (quoting United States v. Samuels,

(8th Cir.

1987) (Arnold, J., concurring in denial of reh'g en banc))). Each party viewed this case as raising

an evidentiary matter, and so do we.

¶ 45 Even if we addressed the issue raised by the dissent, we would not reach its conclusion

that the prosecution failed to prove respondent guilty beyond a reasonable doubt. Two witnesses

identified respondent, both in a lineup and at trial, as the person holding onto a triathalon bicycle

that jutted haphazardly out of the open rear door of a fast-moving car. Not only did they observe

the car on the same block as the offense and within five minutes of the offense, but Gorsuch

identified the bicycle as a Cervelo brand triathalon bicycle, the same as Bravi's. Because

respondent passed within 10 feet of the witnesses on a clear and sunny afternoon, and because

the witnesses had unobstructed views, they were able to describe the action with considerable

specificity: respondent sat in the front seat; he was turned around in his seat; his window was

rolled down; the car was an older, electric teal Japanese sedan; the car ran a stop sign; a bicycle

jutted out of the open rear door; and the bicycle was a Cervelo triathalon bicycle, like Bravi's.

¶ 46 We also find Cedicci's and Gorsuch's identifications compelling. Although the witnesses

tentatively identified the Salsedos in a photo array, they abandoned these identifications upon

15 No. 1-10-3835

viewing the Salsedos in person. Later, when respondent was a lineup subject, Cedicci and

Gorsuch showed no hesitation in positively identifying him. The trial court credited these

identifications.

¶ 47 The dissent also notes that respondent has already served his sentence and, according to

the presentence investigation report, was young and learning disabled at the time of the offense.

Respondent's completion of his sentence should have no bearing on our decision. See People v.

Jordan,

(2006) (fact that defendant has already served sentence does not

render appeal moot). Similarly, respondent's age is irrelevant, as theft requires proof of the same

elements regardless of age. See 720 ILCS 5/16-1 (West 2010); see also People v. Morgan,

(2001) (society has a legitimate interest in being protected from criminal acts

perpetrated by minors). Likewise, although it was pertinent at sentencing, respondent's learning

disability is irrelevant both to the evidentiary matter raised by the parties and the reasonable

doubt matter raised by the dissent and should not be considered on appeal. See People v.

Fontana,

(1993) (where defendant does not present an insanity

defense, evidence of his learning disability is irrelevant during guilt phase).

¶ 48 CONCLUSION

¶ 49 For the foregoing reasons, we reverse respondent's delinquency adjudication and sentence

and remand for further proceedings.

¶ 50 Reversed and remanded for further proceedings.

¶ 51 JUSTICE PUCINSKI, dissenting.

¶ 52 My respected colleagues have held that the trial court committed error when it relied on

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unadmitted hearsay evidence in a bench trial which found Jovan guilty of stealing the bicycle,

adjudicated him a delinquent and sentenced him to 18 months' probation. They have reversed the

respondent's conviction and remanded this cause for further proceedings. I would reverse

outright. I note that Jovan has already completed his probation.

¶ 53 On appeal, respondent contends that his adjudication should be reversed because the trial

court improperly considered statements on a website for the truth of the matter asserted and as

"significant" evidence of his guilt.

¶ 54 The record establishes that in September 2010, the State filed a petition for adjudication

of delinquency and wardship alleging that respondent committed the offense of theft (720 ILCS

5/16-1(a)(1) (

)). The charge stemmed from an incident in July, when a bicycle

belonging to Elizabeth Waterstraat was stolen.

¶ 55 At trial, Lori Bravi testified that at 3:35 p.m. on July 18, 2010, she parked her car at 1652

West Cortland in the Bucktown neighborhood of Chicago and went inside a restaurant to pick up

family members. Ten minutes later, she returned to her car and saw that the Cervelo P2C

triathlon bicycle, which she had borrowed from her friend Elizabeth Waterstraat, was gone from

the bicycle rack on her car trunk and there was fresh, green paint transfer on the rear car bumper.

Bravi called the police and spoke to two witnesses, Johana Cedicci and Piper T. Gorsuch. That

night, Bravi searched online for the bicycle.

¶ 56 Over respondent's hearsay objection, Bravi further testified that she found a classified ad

on craigslist.org for a Cervelo P2C bicycle with four photographs of newer model Cervelo

bicycles and a phone number. She used an online reverse phone number search to find an

17 No. 1-10-3835

address associated with the phone number listed in the ad. When the State attempted to elicit

that address, the trial court sustained respondent's hearsay objection but permitted Bravi to testify

that she gave the information to a detective.

¶ 57 Johana Cedicci and Piper T. Gorsuch positively identified respondent in court as the

person whom they observed, in the front passenger seat of a speeding sedan, holding a triathlon

bicycle jutting out of the open back door. Gorsuch described the sedan as electric teal in color.

Both testified that the passenger side window was open and respondent was smiling. Both

identified People's Group Exhibit Number One as three photographs accurately depicting the

physical lineup she viewed on July 23, 2010, and in which she positively identified respondent.

¶ 58 Detective Jose Castaneda testified that on July 21, 2010, he received information gathered

by Bravi regarding the stolen bicycle, which included a phone number and possible addresses

associated with that number, and viewed the classified ad on craigslist.org. When the State

attempted to elicit the content of the ad, the trial court sustained respondent's hearsay objection,

but allowed Castaneda to testify that a phone number was listed in the ad for the limited purpose

of showing how the detective proceeded with his investigation. Castaneda then testified that he

researched the phone number and addresses provided by Bravi and found a registered name. The

next day, he showed Cedicci and Gorsuch a photo array and lineup, neither of which included

respondent. Cedicci and Gorsuch tentatively identified Renee and Miguel Salsedo as the

individuals they observed in the speeding sedan, then positively identified respondent in a lineup

two days later.

¶ 59 Castaneda further testified that on July 23, 2010, he observed two individuals in a parked

18 No. 1-10-3835

vehicle matching the witnesses' description in the vicinity of one of the addresses given to him by

Bravi. He added that "one description [of the individuals] matched very closely to the driver of

the vehicle at the time." Castaneda then positively identified respondent in court as one of those

individuals whom he detained for questioning. Over respondent's hearsay objection, Castaneda

testified that the phone number listed in the classified ad was serviced by Cricket and that

respondent was holding a Cricket cell phone at the time. When Castaneda dialed the phone

number listed in the classified ad, the Cricket cell phone that respondent was holding rang.

¶ 60 After the parties stipulated to Waterstraat's ownership and the value of the bicycle, the

State rested and the trial court denied respondent's motion for a directed finding. Respondent

rested without testifying or presenting any witnesses on his behalf.

¶ 61 During closing argument, the State conceded that the facts of this case were "rather

complicated," but maintained there was "a great deal of circumstantial evidence that places this

minor as being the individual that was involved in taking the bike." According to the State, "all

that needs to be proved in this case is that the minor was involved in the stealing of this bicycle."

The State argued, "just by the fact that [respondent] was holding the bicycle, *** that shows that

he participated in this crime of trying to keep the bicycle inside the car as it was being driven

away. That is participation and is part of the theft." The State concluded that it had proven its

case beyond a reasonable doubt "with the eyewitness' testimony of what they saw along with all

of the other circumstantial evidence."

¶ 62 In closing, respondent's counsel acknowledged there was testimony that respondent was

the individual observed holding the bicycle inside the car, but noted that no one saw respondent

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remove the bicycle from the rack on Bravi's car trunk and argued, at best, "that may be

possession of stolen property." Counsel then challenged the witnesses' identification of

respondent, noting that two other individuals were initially arrested and tentatively identified as

the offenders.

¶ 63 At the close of arguments, the trial court adjudicated respondent delinquent based on the

theft of Waterstraat's bicycle. In doing so, the trial court highlighted the following findings of

fact:

"Prior to them seeing that incident, we heard from Lori

Bravi who said that she had borrowed a bicycle from her friend, a

very expensive triathlon bicycle, that she had it on the back of her

car and that she had it there for about ten minutes when she was

going inside a restaurant. When she returned, the bicycle was

gone.

She also noticed there was some green paint on her bumper

which had not been there prior. When Ms. Piper T'gorsuch [sic]

and Ms. Cedicci contacted–spoke to the witnesses on the scene,

they all contacted the police and Ms. Bravi also did some

independent investigation on her own to try to determine what

happened to the bicycle.

As she looked through some websites *** she was able to

see a picture of a bicycle that closely resembled the bike that was

20 No. 1-10-3835

taken from her and she contacted her former neighbor, who was a

detective, and the investigation proceeded from there.

***

Now, the law of theft requires, not that someone be seen

taking property, but that that person knowingly possesses property

with the intent to permanently deprive the rightful owner from that

property.

In this case, Ms. Bravi had possession of the bicycle

through permission of a friend. The minor was seen in

circumstances that are consistent with knowing he did not have

permission to have that bicycle. I believe he was that person in the

front passenger seat of the car and that he was that person who was

holding onto the bicycle.

His attempt to sell the bicycle further reinforces that he had

the intent to permanently deprive the true owner of that bicycle.

When they called the number in the ad for sale, that phone

rang in the minor's hand. That is significant evidence. Circum-

stantial evidence shows the minor knew the bicycle was not his.

He did not have the right to be selling it, possessing it and I believe

he was accountable for this theft rather [sic] he physically removed

it from the car or was just physically holding it within the car that

21 No. 1-10-3835

was the get-away car.

The witnesses were clear, uncontroverted in their

observations, their ability to see the minor respondent's face and

there will be a finding of guilty as charged."

¶ 64 In this court, respondent does not challenge the admissibility of purported hearsay

evidence. Rather, he initially contends that the trial court impermissibly considered out-of-court

statements, which it had admitted for the limited purpose of showing the course of investigation,

as proof that he committed the bicycle theft. Although respondent acknowledges the

presumption in a bench trial that the trial court considered only competent evidence (see, e.g.,

People v. Simon,

), he argues that the trial court's ruling rebuts

that presumption.

¶ 65 The State initially asserts that respondent has forfeited consideration of the error by

failing to object at the time of the trial court's oral pronouncement finding that he committed the

theft, when it "explicitly referred to the fact that the number listed on the website belonged to the

phone in [respondent's] hand" as "significant evidence." The State notes that the same forfeiture

principles applicable in criminal proceedings are applicable in juvenile proceedings even though

a postadjudication motion is not required to preserve a claimed error for review. See, e.g., In re

Samantha V.,

, 368 (2009). In this regard, the State acknowledges respondent's

assertion, "albeit in the context of harmless error," that the issue is preserved because trial

counsel made a timely objection to the admissibility of certain testimony on hearsay grounds.

The State argues, however, that while respondent made a standing hearsay objection during

22 No. 1-10-3835

Bravi's testimony and a hearsay objection each time Detective Castaneda was questioned about

the classified ad during the course of his investigation, respondent now presents a related, but

distinct issue that was not brought to the trial court's attention, namely, the court's consideration

of that evidence for an improper purpose. The State argues that this distinct issue should not be

reviewed for plain error because respondent fails to recognize his forfeiture under these

circumstances, nor has he offered any argument under either prong of the plain error doctrine.

¶ 66 Although respondent's arguments for plain error review in his reply brief are sufficient to

allow this court to review the issue for plain error (People v. Ramsey,

(2010)), the first step is to determine whether the State is correct that respondent has forfeited the

issue (People v. Hillier,

(2010)) because that guides the analysis (People v.

Thompson,

(2010)). The State correctly notes that to preserve a claim of trial

court error, respondent must make a timely objection at trial and raise the error in a written

posttrial motion. See, e.g., People v. Enoch,

(1988). However, I would find

that the State's failure to cite more than general forfeiture principles in criminal proceedings

(People v. Piatkowski,

(2007); Robinson v. Point One Toyota, Evanston,

), coupled with the State's recognition that a postadjudication

motion is not required in a juvenile proceeding to preserve a claimed error for review, results in

the State's forfeiture of its forfeiture argument. Vancura v. Katris,

(2010).

¶ 67 Moreover, while research reveals no juvenile delinquency cases where the failure to

object during the trial court's oral pronouncement of delinquency constituted forfeiture, I note

23 No. 1-10-3835

that an oral pronouncement of delinquency does not expressly contemplate the taking of

evidence, but only contemplates the act of articulating the finding of the court. In re Driver,

(1977). Because the trial court made the objectionable statements during its

pronouncement of delinquency when no evidence was being taken, I would find the issue of the

trial court's improper "consideration" of "evidence," which it had limited based on respondent's

objection during trial, sufficiently preserved for review. See In re Dontrale E.,

(2005) (State cited no authority for its position that respondent was required to move

the trial court to reconsider its extended jurisdiction juvenile designation in order to preserve the

issue for review).

¶ 68 Upon request, respondent filed a supplemental brief supporting his position that it was

judicial error for the trial court to rely on a document as the basis of its analysis of a necessary

element of the criminal offense when the court previously limited discussion of the document

only to demonstrating the course of the investigation, and the document itself was not admitted

into evidence. As framed in respondent's supplemental brief, the issue presented for review is

"[w]hether the trial court erred when it relied on the substance of a craigslist posting to prove

elements of the offense when the posting was never admitted into evidence substantively." As

framed in the State's reply, the issue presented for review is "[w]hether the trial court drew

reasonable inferences from competent, nonhearsay testimony to find respondent guilty of

burglary [sic]." Respondent discusses what "evidence" was substantively considered by the trial

court in making its findings of fact regarding his criminal intent and the State refers to

"reasonable inferences" to be drawn from other competent, nonhearsay testimony. See, e.g.,

24 No. 1-10-3835

People v. Schmidt,

(2010).

¶ 69 Respondent attempts to invoke a more favorable de novo standard of review (People v.

Burtron,

(2007)) by asserting that the trial court's findings were

based on evidence outside the record (see, e.g., People v. Salinas,

(2008)), which is consistent with the State's assertion that "[a]t no time did Ms. Bravi offer

hearsay testimony, and she certainly did not testify that the craigslist.org posting indicated that a

Cervelo P2C was for sale and that respondent was the seller." It is also consistent with

respondent's assertion that he is not challenging the admissibility of purported hearsay evidence.

"Merely because something is admissible into evidence does not mean that it is sufficient to

prove a fact or raise a reasonable inference of a fact." People v. Davis,

(1996). The State understands respondent to be challenging the sufficiency of the evidence

relating to a particular element of the offense (People v. Smith,

(2003)),

and respondent expressly asks this court to review the trial court's findings of fact regarding his

intent to permanently deprive the owner of her bicycle (720 ILCS 5/16-1(a)(1)(A) (West 2010)),

which presents disputed questions of fact. People v. Lattimore,

(and cases cited therein).

¶ 70 Ultimately, respondent is attacking the trial court's delinquency determination based on

the evidence, and "such an attack is analogous to a criminal defendant's appellate attack on the

sufficiency of evidence to convict in a criminal bench trial." In re Driver,

-

76; see also In re Malcolm H.,

(2007) (constitutional protection of

proof beyond a reasonable doubt applies to the adjudicatory stage of juvenile delinquency

25 No. 1-10-3835

proceedings), and People v. Berrier,

(2006) (defendant's

challenge to the sufficiency of the evidence supporting his drug possession conviction was that

there was no evidence that the materials discovered were actually controlled substances and no

credible evidence to support the conclusion that he actually possessed the drugs, and as to his

criminal damage to property conviction, there was no proof that he knowingly caused the

damage). Under these circumstances, it is our responsibility to determine whether, after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. In re W.C.,

(1995).

¶ 71 Generally, the State must prove, beyond a reasonable doubt, the elements of the

substantive offense alleged in a delinquency petition, and in doing so, the State may be entitled to

rely upon presumptions or inferences. In re W.C.,

. To sustain respondent's

conviction for theft in this case, the State was required to prove that he knowingly obtained or

exerted unauthorized control over the bicycle of the owner, intending to permanently deprive the

owner of the use and benefit of her bicycle. 720 ILCS 5/16-1(a)(1)(A) (

). Theft

requires proof of two mental states. People v. Jones,

(1992). The two

necessary elements of theft, a proscribed act (committed knowingly (People v. Nunn,

(1979))) and the requisite intent, must coincide. People v. Haissig,

; see People v. Haynes,

(1971) ("[a] person could have

exerted unauthorized control over property knowingly without intending to permanently deprive

the owner of the use of the property").

26 No. 1-10-3835

¶ 72 " 'The State must present sufficient evidence from which an inference of knowledge can

be made, and any inference must be based upon established facts and not pyramided on

intervening inferences.' " In re Keith C.,

(2007) (quoting People v.

Weiss,

(1994)). Knowledge is distinguishable from intent in that it

does not necessitate a showing of conscious objective or aim and contemplates what the person

was " 'subjectively, consciously aware of.' " People v. Kotlinski,

(quoting 1 John F. Decker, Illinois Criminal Law § 2.34, at 2-69 (2d ed. 1993)). Coincidentally,

proof of respondent's intent to permanently deprive could include his "use, abandonment, or

concealment of the property, or consist entirely of his initial taking or control over the property

under circumstances suggesting that he intends to permanently retain it." Haissig,

. The supreme court has stated that "[p]roof that specifically identifiable

property was taken from the burglarized premises is not an essential element of [burglary]

[citation], as it may be in other cases (see, e.g., Ill. Rev. Stat. 1977, ch. 38, pars. 16-1(a) through

(d) (theft)), and the State may prove its case without introducing any such evidence." People v.

Panus,

(1979). (Emphasis added.)

¶ 73 The requisite knowledge and intent for a theft charge may be proven indirectly by

inference or by deduction made by the trier of fact based upon the facts and circumstances of the

case. People v. Cameron,

. "Direct evidence has been described

as evidence which, if believed, proves the existence of the fact in issue without inference or

presumption, whereas circumstantial evidence is evidence which, without going directly to prove

existence of a fact, gives rise to a logical inference that such fact does exist." (Emphasis added.)

27 No. 1-10-3835

People v. Christiansen,

(1969).

¶ 74 "Inferences which constitute elements of the offense, such as the requisite state of mind,

should be based directly on established facts and not pyramided upon intervening inferences."

People v. Davis,

(1977). According to the State, "the record reflects that

the [trial] court drew reasonable inferences from Ms. Bravi's and Detective Castaneda's non-

hearsay testimony, logically concluded that respondent had attempted to sell Ms. Waterstra[a]t's

bicycle, and found that this was yet further evidence of respondent's intent to permanently

deprive her of her bicycle." (Emphasis added.)

¶ 75 I am mindful that the finding of a trial court, in a nonjury case, as here, is entitled to great

weight because the court is able to observe the witnesses, assess their credibility and determine

the weight to be accorded their testimony. People v. Gillespie,

(1995). We do not second-guess the credibility determinations made by the trial court, nor do we

attempt to resolve conflicts in the testimony any differently than did the trial court. Gillespie,

. We also recognize that a defendant can be found guilty of theft solely on

the basis of knowingly exerting unauthorized control over the property of another at the time of

arrest, because the crime of theft is not limited to the original taking of the property (People v.

Alexander,

(1982); see also People v. Price,

(2006)), but this

is not such a case.

¶ 76 Here, in finding respondent delinquent based on theft, the trial court noted that the

offense does not require that someone be seen taking property, but that the person knowingly

possesses property with the intent to permanently deprive the rightful owner of that property.

28 No. 1-10-3835

The trial court found that respondent's attempt to sell the bicycle "further reinforces" that he had

the intent to permanently deprive the rightful owner of that bicycle, and referred to the fact that

the cell phone in respondent's hand rang when the detective dialed the number listed in the

classified ad as "significant evidence." The trial court also found that the circumstantial evidence

showed that respondent knew the bicycle did not belong to him, that he had no right to sell or

possess it, and that it believed respondent was accountable3 for the theft whether he physically

removed the bicycle from Bravi's car or physically held it in the "get-away car." (Emphasis

added.)

¶ 77 The State cites the following facts in support of the inferences upon which respondent's

conviction are based: Bravi saw a bicycle and a phone number in a posting on craigslist.org.

Based on this posting, Bravi alerted Detective Castaneda, who investigated the phone number

and learned that it was serviced by Cricket. Then, Detective Castaneda went to an address where

he detained respondent and observed a Cricket cell phone in respondent's hand. Detective

Castaneda dialed the phone number in the posting and heard the cell phone in respondent's hand

ring. Another person dialed the same phone number and again the same phone rang.

Subsequently, Cedicci and Gorsuch identified respondent in a lineup.

¶ 78 Considering the aforementioned facts, in the light most favorable to the prosecution, I

would conclude that the State's evidence did not allow the trial court to reasonably infer

3 "It must be noted that accountability is a legal theory whereby a defendant is held

responsible for a crime *** which he personally did not commit, but which was committed by

his accomplice." People v. Skiles,

(1983).

29 No. 1-10-3835

respondent's intent to permanently deprive the owner of her bicycle. People v. Harmon,

. As the State notes, Bravi "certainly did not testify that the craigslist.org

posting indicated that a Cervelo P2C was for sale and that respondent was the seller." The fact

that Bravi observed a craigslist posting for a Cervelo P2C bicycle with photographs of newer

model Cervelo bicycles and a phone number, fails to establish, whether by inference or

deduction, that anyone obtained control over Waterstraat's bicycle with the intent to permanently

deprive her of it by selling it on craigslist. See People v. Murray,

(1994).

¶ 79 "Craigslist is like a newspaper, and unlike a phone company or computer manufacturer, in

that it publishes information supplied by its users" (Dart v. Craigslist, Inc.,

(N.D. Ill. 2009)), and that "[i]t is commonplace to see flyers or postings on Craigslist

advertising a found item, which the finder hopes to return to its rightful owner so long as that

person provides an accurate description of the item" (Sanchez v. Melendrez,

(D. N.M. 2013)). Inferring respondent's mental state of intent from the fact that

Bravi observed a craigslist posting for a similar bicycle, without any facts showing that the

posting was published by respondent, and not some other person using a phone to which he had

access, for the purpose of the sale of Waterstraat's specific bicycle, "requires a leap of faith we

are unwilling to take." Gillespie,

. There was no proof that respondent

knew the bicycle was stolen, no proof that respondent posted anything about the bicycle

anywhere, no proof that the respondent ever had that specific bicycle in his possession and no

proof that respondent intended to permanently deprive the owner of her bicycle. Instead this case

30 No. 1-10-3835

involves a young man who, according to his presentence report, was enrolled in special needs

classes and had no significant interaction with the police. Although the evidence presented at

trial may have established a strong suspicion that respondent was somehow involved in

something related to the bicycle, there is no proof that he participated in the actual theft of the

bicycle, only the weak identification linking him to holding a bicycle, not even specifically

identified as the bicycle in question. I note the fact that respondent was not found in possession

of the bicycle and no one described the bicycle with any particularity. People v. Mason,

(1991). Absent these facts, the trial court's inference regarding respondent's

intent to deprive Waterstraat of her Cervelo P2C bicycle was predicated on "guess, speculation,

or conjecture." (Internal quotation marks omitted.) Harmon,

;

People v. Williams,

(2007). Where, as here, "the State's evidence is

incomplete, the trier of fact may not fill in the gaps in the evidence to support a conviction."

Harmon,

. Based on the facts presented at trial, I would find that

the trial court "stretched the limited circumstantial evidence beyond a reasonable inference."

People v. Rouser,

(1990); cf. People v. Moreira,

(2007).

¶ 80 Here, as in People v. Sams,

, since "the State presented no

physical evidence connecting [respondent] to the [bike]", and no evidence that the respondent

knowingly intended to permanently deprive the owner of her specific bicycle, we should find that

the State has not met its burden of proving beyond a reasonable doubt that respondent is guilty.

¶ 81 Finally, the respondent raises the issue of due process, i.e., that the hearsay statements

31 No. 1-10-3835

went unchallenged by cross–examination which is a constitutional question and would have a

beyond a reasonable doubt standard. In determining whether a constitutional error is harmless,

the test to be applied is whether it appears beyond a reasonable doubt that the error at issue did

not contribute to the verdict obtained. Sullivan v. Louisiana,

(1993). The

majority is treating the issue as a straightforward harmless error question, which ignores the fact,

as seen from the above transcript, that the judge clearly relied on the hearsay in rendering her

verdict. It is abundantly clear that the error contributed to the finding of guilty and that Jovan's

due process, that is the right to confront witnesses, was violated. That is, the error was not

harmless.

¶ 82 I believe that here, where the layers of hearsay included Bravi's statement to the police,

the police review of a craigslist ad that had no foundation whatsoever, and the police testimony

about the investigation as a result of the ad–none of which was admitted as substantive

evidence–the evidence in question is like a hall of mirrors: it is hard to tell who is the real

witness, and it is clear that the respondent could not challenge any of it by cross–examination.

Since cross–examination is the bedrock of a criminal trial, its absence cannot be ignored.

¶ 83 When the trial judge ruled that the craigslist evidence and the discussion about it would

not be admitted except for the purpose of the course of the investigation, and then relied heavily

on it in her finding of guilt, she sprang a surprise on the defense that they could not possibly have

predicted, nor could they effectively rebut, except in this appeal. This respondent, having

finished his probation, is no longer able to file a post conviction petition, so this appeal is his

only option.

32 No. 1-10-3835

¶ 84 For the reasons stated, I would reverse respondent's theft conviction and adjudication of

delinquency. People v. Cowans,

(2002); see Burks v. United States,

(1978).

33