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Docket No. 94971-Agenda 1-May 2004.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. BRIAN
CUNNINGHAM, Appellee.
 

Opinion filed October 7, 2004.

JUSTICE GARMAN delivered the opinion of the court: After a bench trial, defendant, Brian Cunningham, was convictedof possession of a controlled substance. 720 ILCS 570/402 (West1998). The appellate court, with one justice dissenting, reversed,holding the evidence was insufficient to sustain the conviction. 333 Ill.App. 3d 1045. We allowed the State's petition for leave to appealpursuant to Rule 315. 177 Ill. 2d R. 315. We now reverse theappellate court and affirm defendant's conviction.

BACKGROUND

The evidence at trial consisted of the testimony of Officer DavidPfest of the Chicago police department, followed by a stipulation. Thestipulation established that the "narcotics *** testified to in this case"consisted of 2.9 grams of a chunky substance in a clear plastic packetthat chemical analysis proved to contain cocaine. The State offeredPfest's testimony to establish defendant possessed the cocaine withthe intent to deliver.

Pfest testified as follows. At about 12:30 a.m. on December 15,1998, he was on patrol in plain clothes with a partner in a vehicle. Inthe 3800 block of Elston Avenue, near Leona's Restaurant, a whitemale citizen in his late 20s or early 30s "flagged down" the vehicle. Tothe best of Pfest's recollection, the citizen was dressed in "blue jeansand just a t-shirt." The citizen informed Pfest that a man nicknamed"Gumby" was selling narcotics and that Pfest could arrange to buynarcotics from Gumby by calling a phone number the citizen provided.

After conferring with fellow officers and setting up surveillance,Pfest called the number the citizen gave him and asked to buy an"eight ball," which is an eighth of an ounce, or approximately 3.5grams, of cocaine. A female responded by asking Pfest if he wasKevin from Elston by Leona's. Pfest said he was Kevin. The femaletold him Gumby was not there and to call back in 15 minutes. Pfestcalled back in 15 minutes. This time a male answered. Pfest againasked for an eight ball. The male replied that he needed to go home toget it, and that in 15 minutes he would pull up near Leona's and honkhis horn.

Approximately 15 minutes later a station wagon arrived wherePfest was waiting near Leona's and the driver honked the horn. Pfestremoved his radio from his pocket and used it to tell fellow officersthat the suspect had pulled up. He then approached the station wagon.As he did, he saw defendant in the driver's seat holding a clear plasticbaggie containing a yellowish white substance. When Pfest got withinabout four feet, defendant appeared to recognize Pfest. Pfest had seendefendant before and may have arrested him on a prior occasion.Defendant's eyes widened and he looked down the street in thedirection of approaching police cars. Defendant then threw the baggieto the floor of the car. Pfest ordered defendant out of the car andarrested him. Another officer seized the baggie.

Pfest could not recall who was his partner that evening. Norcould he recall on whose phone he made the two calls to Gumby. Thetrial court found Pfest's testimony lacked "corroboration" and thuswas insufficient to prove intent to deliver. However, the court foundthe testimony sufficient to prove the lesser-included offense ofpossession. The appellate court reversed, finding that the "wholescenario as described by Officer Pfest [is] *** unworthy of belief."333 Ill. App. 3d at 1050. The court based this finding on specific partsof the testimony that it found incredible. The State contends it waserror for the appellate court to review Pfest's credibility at all.

We granted leave to appeal to consider the State's argument thatthe fact finder's determination that a witness is credible is conclusive.For reasons that follow, we reject the State's argument. Nevertheless,we reverse the judgment of the appellate court because we find therecord evidence sufficient under the standard of review.

ANALYSIS

The due process clause of the fourteenth amendment to theUnited States Constitution requires that a person may not beconvicted in state court "except upon proof beyond a reasonabledoubt of every fact necessary to constitute the crime with which he ischarged." In re Winship, 397 U.S. 358, 364, 25 L. Ed. 2d 368, 375,90 S. Ct. 1968, 1073 (1970). When a court reviews a conviction todetermine whether the constitutional right recognized in Winship wasviolated, it must ask "whether the record evidence could reasonablysupport a finding of guilt beyond a reasonable doubt." Jackson v.Virginia, 443 U.S. 307, 318, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781,2788-89 (1979). In other words, the question is "whether, afterviewing the evidence in the light most favorable to the prosecution,any rational trier of fact could have found the essential elements of thecrime beyond a reasonable doubt." (Emphasis in original.) Jackson,443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. We haveadopted the Jackson formulation of the standard of review for claimsthat the evidence was insufficient to sustain a conviction. People v.Collins, 106 Ill. 2d 237, 261 (1985). The Jackson standard applies inall criminal cases, regardless of the nature of the evidence. People v.Pollock, 202 Ill. 2d 189, 217 (2002).

The State argues that, under the Jackson standard, the factfinder's determination that a witness is credible is conclusive. TheState points out that Jackson requires a reviewing court to view theevidence in the light most favorable to the prosecution, and arguesthat this requirement precludes reviewing the credibility of witnesses.The State argues that reading a cold transcript cannot justifydisbelieving testimony the fact finder actually heard and has accepted.We disagree.

As a threshold matter, defendant argues that the State hasforfeited its claim that the trial court's credibility determination isconclusive. The State did not raise that claim in the appellate court.Defendant's argument has no merit. When the appellee in the appellatecourt appeals to this court, it " 'may raise any question properlypresented by the record to sustain the judgment of the trial court, eventhough those questions were not raised or argued in the AppellateCourt.' " People v. Schott, 145 Ill. 2d 188, 201 (1991), quotingMueller v. Elm Park Hotel Co., 391 Ill. 391, 399 (1945).

Turning to the State's argument, we begin with the fact thatJackson requires reviewing courts to "determine whether the recordevidence could reasonably support a finding of guilt beyond areasonable doubt." (Emphasis added.) Jackson, 443 U.S. at 318, 61L. Ed. 2d at 573, 99 S. Ct. at 2788-89. It follows that where thefinding of guilt depends on eyewitness testimony, a reviewing courtmust decide whether, in light of the record, a fact finder couldreasonably accept the testimony as true beyond a reasonable doubt. Inconducting this inquiry, the reviewing court must not retry thedefendant. People v. Smith, 185 Ill. 2d 532, 541 (1999). Thereviewing court must carefully examine the record evidence whilebearing in mind that it was the fact finder who saw and heard thewitness. Smith, 185 Ill. 2d at 541. Testimony may be foundinsufficient under the Jackson standard, but only where the recordevidence compels the conclusion that no reasonable person couldaccept it beyond a reasonable doubt. See, e.g., Smith, 185 Ill. 2d 532,545 (1999) (holding that no reasonable person could find the witness'testimony credible); Schott, 145 Ill. 2d at 206-07 (holding thatcomplaining witness so lacked credibility that a reasonable doubt ofdefendant's guilt remains). However, the fact a judge or jury didaccept testimony does not guarantee it was reasonable to do so.Reasonable people may on occasion act unreasonably. Therefore, wereaffirm that the fact finder's decision to accept testimony is entitledto great deference but is not conclusive and does not bind thereviewing court. See Smith, 185 Ill. 2d at 542.

Certainly, as the State emphasizes, the reviewing court must viewthe evidence "in the light most favorable to the prosecution." Jackson,443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. This meansthe reviewing court must allow all reasonable inferences from therecord in favor of the prosecution. However, a reviewing court maynot allow unreasonable inferences. See Jackson, 443 U.S. at 319, 61L. Ed. 2d at 573, 99 S. Ct. at 2789 (stating that the standard of review"gives full play to the responsibility of the trier of fact *** to drawreasonable inferences from basic facts to ultimate facts" (emphasisadded). It follows that if only one conclusion may reasonably bedrawn from the record, a reviewing court must draw it even if itfavors the defendant.

Turning to Pfest's testimony, we find three instances where theonly reasonable conclusion from the record is that a particularstatement remains subject to question. First, Pfest stated he spoke toa citizen on the street who was wearing jeans and only a T-shirt. Wemay notice, as commonly known facts, that mid-December nights inChicago are usually cold, and that people usually do not go outside inthe cold dressed only in a T-shirt. See People v. Tassone, 41 Ill. 2d 7,12 (1968) (stating courts may notice matters of common knowledge).There is no record evidence that could reasonably explain why thiscitizen was wearing just a T-shirt on the night in question. There are,of course, many possible explanations. Perhaps the night wasunusually warm or the citizen unusually tolerant of cold, for example.However, none of these possibilities is supported (or refuted) by therecord. Therefore the only reasonable inference from the record is thatPfest's statement that the citizen wore just a T-shirt remains subjectto question.

Second, Pfest's statement that the citizen "flagged [him] down"is likewise subject to question. Pfest was in plain clothes. The recordis silent about whether Pfest was patrolling in an unmarked car, butthe only reasonable inference is that he was, because he was in plainclothes. No record evidence reasonably explains how the citizen knewPfest was a police officer. Pfest testified he did not know the citizen.Again, many explanations are possible but, adhering to the record, theonly reasonable inference is that Pfest's statement that the citizenflagged him down remains subject to question.

Third, questions remain about Pfest's statement he used his hand-held radio to speak to other officers after defendant pulled up in thestation wagon. Nothing in the record reasonably explains why anofficer with 10 years of experience would have done so in sight of asuspected drug dealer during an undercover drug buy. For example,there is no record evidence that Pfest was waiting in the shadows orin some other place the driver of the station wagon could not see.Again, adhering to the record, we find the only reasonable conclusionis that questions remain about this statement.

Regarding other parts of Pfest's testimony mentioned by theappellate court, we agree with the dissenting justice and find nogrounds in the record to question them. See 333 Ill. App. 3d at 1051-52 (Greiman, J., dissenting). Pfest's statement that he ordered aneighth of an ounce of cocaine, where the amount seized wassomewhat less, is not questionable on review because record evidencereasonably explains the anomaly; Pfest explained that drug dealerscommonly cheat their customers. Nor is there cause to questionPfest's testimony that the arrest occurred on December 15, while hisreport was dated December 14. Pfest testified that he began his shifton December 14, but the arrest occurred in the early morning ofDecember 15. From those facts, one could reasonably infer heconfused the dates when he wrote the report. Neither do we findquestionable Pfest's testimony that he could not recall details such asthe name of his partner on the night in question, or what phone heused to make the calls to Gumby, or the number he called. One couldreasonably infer Pfest forgot these details, because the record showsthe trial occurred some 22 months after the arrest, there is nothingespecially memorable about these details, and there is no recordevidence tending to show Pfest would be unlikely to forget them.

The conclusion that some statements in Pfest's testimony arequestionable, of course, does not answer the ultimate question beforeus. Defendant's conviction for possession of a controlled substancerests in the first instance on Pfest's statements that defendant washolding the baggie containing cocaine, and that he threw the baggie tothe floor of the car after he appeared to recognize Pfest. The questionis whether a fact finder could reasonably accept those statements asproof beyond a reasonable doubt, in spite of questions remainingabout other parts of Pfest's testimony.

The appellate court inferred that the "whole scenario as describedby Officer Pfest [is] *** unworthy of belief." 333 Ill. App. 3d at 1050.We disagree. First, it is important to bear in mind that the aboveanalysis reveals unresolved questions about certain statements Pfestmade, but it in no way proves those statements are lies or errors.Moreover, even when a witness is found to have knowingly givenfalse testimony on a material point, a fact finder may reject his entiretestimony but is not bound to do so. Swift & Co. v. IndustrialComm'n, 52 Ill. 2d 490, 495 (1972). See also Sparling v. PeabodyCoal Co., 59 Ill. 2d 491, 498-99 (1974) (stating that even"contradictory testimony of a witness does not per se destroy [hiscredibility], and it remains for the trier of fact to decide when, if at all,he testified truthfully"). In other words, it is for the fact finder tojudge how flaws in part of the testimony affect the credibility of thewhole. Of course, for the reasons discussed above, the fact finder'sjudgment in that regard must be reasonable in light of the record. Insome cases a reviewing court may find, after considering the wholerecord, that flaws in testimony made it impossible for any fact finderreasonably to accept any part of it.

For example, in Schott the complaining witness' testimonycontradicted, at several points, her sworn testimony in a previousproceeding. The record also showed that she was an admitted liar whohad a motive to falsely accuse the defendant. Because the recordshowed the witness to have been so thoroughly impeached, we heldher testimony insufficient to convict. Schott, 145 Ill. 2d at 209.

The appellate court's decision in People v. Quintana, 91 Ill. App.2d 95 (1968), provides another example factually closer to the case atbar. In Quintana, a police officer testified he saw the defendant throwsome packets under a car and that he thought the packets probablycontained marijuana because marijuana is usually packaged that way.He was contradicted by the State's forensics expert, who testified thepackets seized were unusual. Moreover, the record, through thedefendant's testimony and the officer's own admission, showed theofficer had been harassing and threatening the defendant in an effortto get the defendant to become an informant. Quintana, 91 Ill. App.2d at 98. Thus the appellate court, in reversing the conviction, reliedon the officer's motive to fabricate a charge against the defendant andnot simply the fact he had been contradicted by another prosecutionwitness on a material point.

In this case, there is nothing in the record showing that the onlyreasonable inference is that the questionable parts of Pfest's testimonymake the whole unworthy of belief. This is not a case, like Schott orQuintana, where the record showed the witness was a liar or had amotive to falsely accuse the defendant. Nor is this a case in which thewitness' description of the actual crime was incredible on its face. See,e.g., People v. Coulson, 13 Ill. 2d 290, 296 (1958) (stating that thecomplaining witness' testimony that armed robbers allowed him to gounaccompanied into his house to get more money, trusting his promisenot to call the police, "taxes the gullibility of the credulous"). Wherethe record is not such that the only inference reasonably drawn fromflaws in the testimony is disbelief of the whole, a reviewing courtshould bear in mind that the fact finder had the benefit of watching thewitness' demeanor. See 333 Ill. App. 3d at 1052 (Greiman, J.,dissenting). After considering all of the record evidence and viewingPfest's demeanor, a fact finder could reasonably conclude beyond areasonable doubt defendant was holding the baggie and threw it downwhen he realized police were approaching. That, along with thestipulation that the substance in the baggie contained cocaine, issufficient to support defendant's conviction.

CONCLUSION

The adage that "one bad apple spoils the lot" does sometimesdescribe the relation between specific flaws in a witness' testimonyand the credibility of the whole. In some cases, the record requires theinference from doubts about parts of testimony to doubt about thewhole. In other cases, however, the adage does not apply because therecord does not require the inference from part to whole. This casefalls into the latter category. Despite the doubts about some parts ofPfest's testimony discussed above, the statements that directly supportdefendant's conviction for possession of the cocaine could reasonablybe accepted by the fact finder, who saw Pfest testify, as true beyonda reasonable doubt. The judgment of the appellate court is thereforereversed, and the judgment of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.