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No. 3--03--0077

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2004

PRESIDING JUSTICE HOLDRIDGE delivered the Opinion of the court:

A jury found the defendant, Elon Coleman, guilty of armedrobbery (720 ILCS 5/18--1(a), 18--2(a) (West 2002)) andaggravated vehicular hijacking (720 ILCS 5/18--3(a), 18--4(a)(3)(West 2002)). The trial judge then vacated the hijackingconviction and sentenced the defendant to 10 years' imprisonmentfor armed robbery. On appeal, the defendant argues that theState failed to prove the presence of a dangerous weapon beyond areasonable doubt and asks that we reduce the conviction to simplerobbery. We affirm.

I. FACTS

At trial, the victim, Yashica Butler, testified that on theevening of May 16, 2002, she had just retired to bed when herbrother knocked on her bedroom door. He informed Butler that ayoung girl by the name of Shantae was at the front door. Thatname was not familiar to Butler, but she went to the front doorto see who it was.

When Butler reached the door, she recognized the young girl.Butler and her boyfriend had seen the girl at a gas station acouple of days earlier. The young girl stated that she had justbeen riding in a car with three men who were trying to take herto a hotel and rape her. The girl had recognized the vehicle ofButler's boyfriend in the driveway from the gas station and wasasking for a ride home. Butler agreed to help the girl and theydrove off in the vehicle of Butler's boyfriend.

The girl took Butler to a house the girl identified as heraunt's. Butler waited to make sure the girl made it insidesafely. The girl went around the back of the house and thenreturned to the vehicle. The girl stated that her aunt wanted tosee who had dropped her off, so Butler went with her to the sidedoor. While the girl was unsuccessfully trying to open the door,a male (later identified as the defendant) came around from theother side of the house.

Sensing that there was something suspicious happening,Butler turned to leave. At this point the young girl grabbedButler from behind, putting her arm around Butler's throat. AsButler tried to pull away from the girl, she received a straight,thin cut on the left side of her throat. Also at that time, theyoung girl indicated that she was going to cut Butler. It isunclear from the testimony whether Butler actually saw anobject in the girl's hand or simply assumed that there was oneon the basis of the cut she received and the young girl'sstatement. On cross examination, Butler indicated that she couldnot be sure what, if anything, the young girl had in her hand. She also admitted that whatever had cut her could have been afingernail, ring, or bracelet.

Butler testified that at this point the defendant patted herdown. Butler told the assailants that she did not have anythingworth taking except her car. The defendant then took her carkeys and purse. He told the young girl, We got what we camefor, let's go. The two then left with the vehicle.

Butler ran to a phone and called the police. She then metthe police back at her home and gave a description of theassailants and the stolen vehicle. In a stipulated statement,Officer Richard Rangel of the Calumet City police departmentindicated that he was on patrol the following morning when heresponded to a call about a suspicious vehicle. Officer Rangellocated the vehicle, and his efforts to pull the vehicle overresulted in a high speed chase. The vehicle he was chasing wasin fact the same vehicle stolen the night before. The young girlwas driving the vehicle and the defendant was in the passengerseat. The young girl soon lost control of the vehicle and cameto a stop off the roadway. Both occupants were taken intocustody. No weapon was recovered.

After all the testimony, the jury found the defendant guiltyof armed robbery and aggravated vehicular hijacking. After thetrial, the court denied the defendant's motion for a new trial,vacated the hijacking conviction, and sentenced the defendant to10 years' imprisonment for armed robbery. This appeal followed.

The defendant argues that the State failed to prove himguilty of armed robbery beyond a reasonable doubt. Specifically,the defendant submits that there was insufficient evidence of thepresence of a dangerous weapon at the scene of the robbery.

When considering the sufficiency of the evidence to supporta criminal conviction, the standard of review is whether, afterviewing all of the evidence in the light most favorable to theprosecution, any rational trier of fact could have found theessential elements of the offense beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985). Aperson commits armed robbery when he or his accomplice takesproperty from the person of another by the use of force and isarmed with a dangerous weapon. 720 ILCS 5/18--1(a), 18--2(a)(West 2002). Proof of a dangerous weapon may be established onthe basis of circumstantial evidence. People v. Meadows, 92 Ill.App. 3d 1028, 416 N.E.2d 404 (1981).

The defendant argues that Butler's testimony wasinconsistent and insufficient to prove the existence of adangerous weapon beyond a reasonable doubt. He argues thatButler's testimony shows not only that Butler could not identifywhat kind of weapon the young girl may have had, but that Butlerdid not even know whether she had a weapon at all. He furthercontends that Butler merely assumed that there was a weaponbecause she was cut by something sharp. In making this argument,the defendant relies primarily on People v. Bias, 131 Ill. App.3d 98, 475 N.E.2d 253 (1985).

In Bias, the victim testified that the defendant pointedsomething which felt sharp against his neck during thecommission of a robbery. The victim admitted that he did not seethe object, and further admitted on cross examination that itcould have been a very sharp fingernail. The victim was not hurtand no weapon was ever recovered. On appeal, the court held thatthis testimony was insufficient to prove the existence of adangerous weapon, and reduced the defendant's armed robberyconviction to simple robbery. Bias, 131 Ill. App. 3d 98, 475N.E.2d 253.

We do not find the Bias case controlling here. In Bias, thecourt indicated that the only evidence of the object involved wasthe victim's testimony that the object might have been a verysharp fingernail. Aside from this testimony, the court foundthe record before us does not contain a shred of evidence thatany particular type of dangerous weapon was present at the time. Bias, 131 Ill. App. 3d at 107, 475 N.E.2d at 259. It was on thisbasis that the court reduced the conviction to simple robbery.

Bias is distinguishable because here there is additionalevidence that a dangerous weapon was present. First, Butler didsustain a cut or a scratch on her neck when she pulled away fromthe young girl. Second, shortly thereafter the young girlindicated that she was going to cut Butler.

We find the circumstances of People v. Rice, 109 Ill. App.2d 391, 248 N.E.2d 745 (1969), to be more analogous to the caseat hand. In that case, the victim's throat was cut during arobbery. The victim never saw a weapon, nor was a weapon everrecovered from the defendant. The only evidence of a weapon wasthe cut, which the defendant argued could have been caused by aring, and the fact that a witness indicated the defendant ranaway with a razor in hand. The court upheld the armed robberyconviction, indicating that the existence of a weapon may beproperly inferred from this evidence. Rice, 109 Ill. App. 2d391, 248 N.E.2d 745.

As in the Rice case, here the victim was cut by a weapon shecould not identify. Also as in Rice, a weapon was neverrecovered. It is true that in Rice, there was a witness whoindicated that there was a razor present. Rice, 109 Ill. App. 2d391, 248 N.E.2d 745. Such a statement is direct evidence that aweapon was present. While we do not have such direct evidence inthis case, there was testimony that the one of the assailantsindicated that the she was going to cut Butler. That evidence,as well as the cut itself, are significant pieces ofcircumstantial evidence leading to an inference that a dangerousweapon was present.

It is true that the victim's testimony about the weapon wassomewhat confused. Nevertheless, so long as additional evidencesuch as the cut and the young girl's statement exists, aconviction for armed robbery may be upheld "even though theweapon itself was neither seen nor accurately described by thevictim." People v. Elam, 50 Ill. 2d 214, 220, 278 N.E.2d 76, 79(1972) (victim told by defendant that the weapon pointed in hisback was a gun when in fact defendant was later apprehended armedonly with a knife); People v. DuPree, 69 Ill. App. 3d 260, 387N.E.2d 391 (1979) (all victim saw was outline of gun wrapped inhandkerchief when robber announced a "stick-up"); People v.Moore, 14 Ill. App. 3d 361, 302 N.E.2d 425 (1973) (victim unsurewhether shiny object in defendant's hand was gun or knife). Inlight of all the testimony and the high standard of review, wecannot say that it was unreasonable for the jury to have foundthe defendant guilty of armed robbery.

III. CONCLUSION

For the reasons stated, we affirm the judgment of thecircuit court of Kankakee County.

Affirmed.

LYTTON and MCDADE, JJ., concur.