No. 2-14-0340 Opinion filed September 23, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 13-CF-1262 ) LORENZO KENT, JR., ) Honorable ) Fernando L. Engelsma, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court, with opinion. Justices Hutchinson and Birkett concurred in the judgment and opinion.

OPINION

¶1 Defendant, Lorenzo Kent, Jr., and his girlfriend, Kimiko Wilson, were involved in an

altercation with Dashon Thompson and Donmarquis Jackson, with whom Wilson has two

children. Based on defendant’s and Wilson’s conduct during the altercation, a bench trial

resulted in defendant’s conviction of mob action (see 720 ILCS 5/25-1(a)(1) (West 2012)) and a

sentence of 2½ years’ imprisonment.

¶2 On appeal, defendant argues that the State failed to prove beyond a reasonable doubt that

he and Wilson acted together to disturb the public peace through the use of force or violence.

We agree with defendant and reverse the conviction.

¶3 I. BACKGROUND

¶4 Defendant and Wilson were charged with mob action based on the allegation that, on May

4, 2013, they knowingly, by the use of force or violence, disturbed the public peace in that they,

while acting together and without authority of law, struck Jackson, thereby inflicting injury to him.

See 720 ILCS 5/25-1(a)(1) (West 2012).

¶5 Thompson testified at trial that, on May 4, 2013, he and Jackson were riding in a car when

Jackson received a call from Wilson. Thompson heard Jackson arguing with Wilson on the

phone. Thompson drove to Jackson’s home, on Nelson Boulevard in Rockford. As Thompson

and Jackson were exiting the car, Wilson and defendant drove up together. Jackson and Wilson

argued in the front yard. Then Jackson and defendant argued.

¶6 Doris Gregory, who was Jackson’s girlfriend and was watching his children at the

residence, also testified that there were two arguments: one between Jackson and Wilson and one

between Jackson and defendant. Gregory testified that defendant was in his vehicle while

Jackson and Wilson argued, and that defendant and Jackson argued only after defendant exited his

vehicle.

¶7 Thompson testified that Wilson argued with Jackson outside the home and then turned to

enter it. As Wilson started to enter the home, Jackson turned to enter the home. Gregory and

Thompson each testified that, as Jackson turned to enter the home, defendant struck Jackson from

behind. A fight ensued between defendant and Jackson on the home’s enclosed porch.

Thompson saw a glass break on the porch floor and heard the children screaming from inside.

Gregory saw part of the fight through a glass door, while she was inside helping Wilson’s and

Jackson’s daughter put on a coat.

¶8 The court heard conflicting testimony about Wilson’s participation in the fight. Gregory

testified that she saw Wilson argue with Jackson and pick up a wheelchair as if to strike Jackson

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with it, though Gregory never saw Wilson strike Jackson or hear what Wilson said. Thompson,

however, testified that he saw Wilson next to the wheelchair but never saw her pick it up or attempt

to strike Jackson. Thompson testified that Wilson did not communicate with defendant.

¶9 Thompson broke up the fight after four to five minutes. He testified that after the fight

defendant threatened Jackson with a knife. Gregory did not see defendant do or say anything

after the fight. Jackson suffered a cut over his left eye, bite marks on his head, and scrapes on his

elbow and knee.

¶ 10 Following the State’s case, defendant moved for a directed finding, arguing that the State

had not established that defendant and Wilson were acting together in the course of the conduct.

He also argued that the fight had not disturbed the public peace, because it took place on an

enclosed porch. The State responded that the “acting together” element was satisfied by

Gregory’s testimony about Wilson’s actions with the wheelchair while in close proximity to the

fight and by the evidence that Wilson’s argument with Jackson was the catalyst of the fight.

¶ 11 The trial court found that, when viewed in the light most favorable to the State, the

evidence was sufficient to establish mob action. Noting that presence alone is not enough to

establish a criminal offense, the court determined that presence may be considered when analyzing

whether two people were acting together. The court found that there was unity of purpose

between Wilson and defendant, as they were there to pick up Wilson’s and Jackson’s children and

they each argued with Jackson. In combination with the timing of the occurrence, the trial court

found, there was sufficient evidence to survive the motion for a directed finding.

¶ 12 Detective Scot Mastroianni testified for the defense that, when he spoke with Gregory two

days after the incident, she did not say that she witnessed the fight. About a month later, Gregory

changed her story and reported that she had witnessed the fight.

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¶ 13 After closing argument, the trial court found defendant guilty of mob action. In

explaining its decision, the court found that, although Thompson’s testimony was impeached by

his prior convictions, it was credible because it was consistent with Gregory’s testimony. The

court noted Thompson’s testimony that Jackson and Wilson were arguing and that defendant

struck Jackson from behind as Jackson was following Wilson into the house.

¶ 14 The trial court found that Gregory’s testimony about the wheelchair had been somewhat

impeached. However, the court found the wheelchair testimony to be irrelevant, as there was not

enough “substantive” testimony as to whether the wheelchair was moved or had been used as a

weapon. Therefore, the court reached “no conclusions concerning the wheelchair.”

¶ 15 The trial court determined that, to prove “acting together” for purposes of mob action, the

State need not prove that defendant and Wilson were acting in furtherance of the final crime of

inflicting violent injury on Jackson, but rather that they were acting with a similar purpose and

knowingly performing actions that disturbed the public peace. The court concluded that, when

determining if two parties were acting together, the relevant factors to consider are whether the

parties arrived together, whether there was a spatial closeness between the parties, and the type of

language between them.

¶ 16 The trial court found that there was no communication between Wilson and defendant but

that the other surrounding circumstances showed a singular purpose such that defendant and

Wilson were acting together. The court noted the verbal altercations between the two sides, the

simultaneous arrival of defendant and Wilson, and Wilson’s attempt to enter the home as

defendant struck Jackson from behind. The court also found that Jackson sustained injuries that

were violently inflicted, and that, although the altercation continued on the porch, the altercation

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disturbed the public peace because it had started in the front yard. Following the denial of

defendant’s posttrial motions and the sentencing hearing, defendant timely appealed.

¶ 17 II. ANALYSIS

¶ 18 In a challenge to the evidence supporting a criminal conviction, a reviewing court does

not retry the defendant. People v. Smith,

(1999). “When reviewing the

sufficiency of the evidence, ‘the relevant question is 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.’ (Emphasis in original.)” People v. Bishop,

(2006) (quoting Jackson v. Virginia,

(1979)); People v.

Collins,

(1985). “Testimony may be found insufficient under the Jackson

standard, but only where the record evidence compels the conclusion that no reasonable person

could accept it beyond a reasonable doubt.” People v. Cunningham,

(2004). Our duty is to carefully examine the evidence while giving due consideration to the

fact that the court saw and heard the witnesses. The testimony of a single witness, if it is

positive and the witness is credible, is sufficient to convict. Smith,

. The

credibility of a witness is within the province of the trier of fact, and the court’s finding on such

matters is entitled to great weight, but its determination is not conclusive. We will reverse a

conviction where the evidence is so unreasonable, improbable, or unsatisfactory that it creates a

reasonable doubt of the defendant’s guilt. Smith,

.

¶ 19 Defendant was convicted of a violation of section 25-1(a)(1) of the Criminal Code of

2012, which defines mob action as “the knowing or reckless use of force or violence disturbing

the public peace by 2 or more persons acting together and without authority of law.”

(Emphasis added.) 720 ILCS 5/25-1(a)(1) (West 2012). A conviction under this section

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requires that the evidence show that the accused “was part of a group engaged in physical

aggression reasonably capable of inspiring fear of injury or harm.” In re B.C.,

(1997). An individual’s mere presence in a place where a riot or disturbance is taking place

does not support a conviction of mob action. People v. Roldan,

(1973) (“The

evidence offered by the prosecution was entirely consistent with the innocent presence of the

defendants on the playground.”). Similarly, to sustain a mob-action conviction, the State must

present evidence that the individual had the requisite mental state of having the intent to commit

an unlawful act. In re Kirby,

(1977) (conviction reversed where

there was no evidence that the defendant either threatened or touched the victim).

¶ 20 Defendant does not dispute that he struck Jackson from behind and thus knowingly used

force or violence to disturb the public peace. However, defendant challenges the evidence

supporting the “acting together” element of the offense. Even under the extremely deferential

standard for reviewing the evidence that supports a criminal conviction, we conclude that the

State failed to prove beyond a reasonable doubt that defendant and Wilson were acting together

when he committed the battery of Jackson.

¶ 21 In support of its finding that defendant and Wilson were acting together, the trial court

cited evidence of the simultaneous arrival of defendant and Wilson; the verbal altercations, with

Jackson on one side and defendant and Wilson on the other; and what the trial court called the

“almost instantaneous” acts of Wilson attempting to enter the home and defendant striking

Jackson. However, without more, this evidence does not satisfy the “acting together” element

of mob action.

¶ 22 The trial court found the testimony regarding Wilson and the wheelchair to be irrelevant

and unsubstantiated by other evidence. The court went a step further and found that there was

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no evidence that Wilson attempted to use the wheelchair as a weapon. The State offered no

evidence that Wilson threatened or touched Jackson as they argued or during Jackson’s

altercation with defendant. There was no evidence of exactly what, if anything, Wilson said

during the entire incident. There was no evidence of communication between defendant and

Wilson that would indicate Wilson’s intent or a commonality of purpose between them.

¶ 23 The State contends that the “acting together” element was satisfied by evidence that (1)

Wilson attempted to enter Jackson’s home by force and without permission; (2) Wilson had a

loud argument with Jackson, which showed that she had the requisite mental state to disturb the

public peace; and (3) defendant assisted Wilson by arguing with Jackson before striking him.

The State could have established the “acting together” element by showing that Wilson was

forcefully attempting to enter the home and that defendant struck Jackson to assist Wilson, but

the trial court heard no such evidence.

¶ 24 Thompson testified that Wilson turned and tried to enter the house. However, there was

no testimony that she lacked permission to enter, that Jackson or Gregory attempted to stop her,

or that her actions were forceful, violent, or aggressive. Indeed, Gregory testified that the fight

started when she was helping Wilson’s and Jackson’s daughter put on her coat to leave.

Further, both Gregory and Thompson testified that Wilson remained on the porch during the

fight and did not continue trying to enter the home. Contrary to the State’s assertion, the

evidence presented at trial does not support the inference that Wilson’s attempted entry into the

home was forceful and without the permission of Jackson or Gregory.

¶ 25 Although the court heard testimony that Wilson engaged in a verbal argument with

Jackson before defendant struck him, there is no evidence that she was part of a group engaged

in physical aggression. See B.C.,

(the accused must be shown to be “part of a

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group engaged in physical aggression reasonably capable of inspiring fear of injury or harm”).

Without evidence of a common purpose to disturb the public peace by striking Jackson, Wilson’s

argument with Jackson is not sufficient to show that she and defendant were acting together.

¶ 26 We defer to the trial court’s credibility determinations, but the court heard no evidence

that defendant and Wilson assisted each other. Defendant and Wilson were not acting together,

other than by being present in the area of the disturbance and arguing with Jackson before

defendant committed a battery against him. Thus, the evidence at trial is insufficient to show

that defendant and Wilson were acting together to disturb the public peace. We reverse the

conviction of mob action, because the evidence is so unreasonable, improbable, or unsatisfactory

that it creates a reasonable doubt of defendant’s guilt. See Smith,

.

¶ 27 III. CONCLUSION

¶ 28 Defendant was not proved guilty of mob action beyond a reasonable doubt, because the

State did not present sufficient evidence that defendant and Wilson were “acting together.”

Wilson’s presence in the area of the disturbance and her arguing with Jackson do not satisfy the

“acting together” element. The judgment of the circuit court of Winnebago County is reversed.

¶ 29 Reversed.

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