People v. Moore , 2022 IL App (2d) 190979-U ( 2022 )

2022 IL App (2d) 190979-UNo. 2-19-0979
Order filed March 21, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
Plaintiff-Appellee, )
)
v. ) No. 17-CF-30
)
MARCO D. MOORE, ) Honorable
) Glenn R. Schorsch,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRIDGES delivered the judgment of the court.
Justices McLaren and Schostok concurred in the judgment.
ORDER
¶1 Held: There was sufficient evidence to find defendant guilty beyond a reasonable doubt
of aggravated battery with a firearm under an accountability theory, where
prolonged pursuit of the victim’s vehicle and ballistic evidence support the finding
that defendant intentionally facilitated his passenger’s shooting. Therefore, we
affirm.
¶2 Defendant, Marco D. Moore, appeals his conviction of aggravated battery with a firearm
(720 ILCS 5/12–3.05(e)(1) (West Supp. 2017)) based on a theory of accountability. Defendant
argues that the State failed to prove him guilty of the crime beyond a reasonable doubt in that the
State failed to sufficiently prove his accountability for the actions of co-defendant Kahill Brown.
2022 IL App (2d) 190979-UWe affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged with two counts of aggravated fleeing to elude a peace officer (625
ILCS 5/11-204.1(a)(1), (4) (West 2016)), two counts of unlawful possession of a controlled
substance (720 ILCS 570/402(c) (West Supp. 2017)), armed violence (720 ILCS 5/33A-2(a) (West
2016)), aggravated discharge of a firearm within 1,000 feet of a school (720 ILCS 5/24-1.2(a)(2)
(West Supp. 2017)), and aggravated battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West Supp.
2017)). A trial was held, wherein defendant was convicted of the enumerated charges, but the trial
court after a hearing ultimately found that defendant had received ineffective assistance of counsel
and granted him a new trial. A second, four-day bench trial was held on March 25 to 27 and April
10, 2019. Defendant was found guilty of two counts of aggravated fleeing, aggravated discharge
of a firearm within 1000 feet of a school, and aggravated battery with a firearm. Defendant was
sentenced to 10 years imprisonment.
¶5 A. Shooting and Chase
¶6 On January 23, 2017, around 2:05 p.m., officers from the Freeport Police Department were
in the area of Walnut Avenue and Broadway Street in Freeport, Illinois, having just executed a
search warrant on a nearby residence. Officer Matthew Anderson was in his marked police SUV
and Detective Timothy Krieger was in his unmarked tan police vehicle.
¶7 As they turned onto Broadway Street facing towards Walnut Avenue, they heard two or
three gunshots followed by a brief pause and then another eight to ten shots. The sound seemed to
come from just north of their location. Seconds later they observed a red Chevy Malibu followed
closely by a black Chevy Tahoe traveling south on Walnut Avenue at a high rate of speed. They
turned on their lights and sirens, turned onto Walnut Avenue and began to pursue the vehicles,
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2022 IL App (2d) 190979-Uwith the Malibu leading the chase followed by the Tahoe, then Krieger, then Anderson.
¶8 As the vehicles passed the intersection of Homer Street and Walnut Avenue, they were
recorded by a security camera at the home of Issac Larmoreux. At that point in the chase, the
Tahoe’s windshield was intact and the front passenger side window was down. The security
footage shows that after the vehicles passed Larmoreux’s home, the Malibu’s front passenger door
was open slightly. Afterward, the Tahoe can be seen swerving slightly into the oncoming lane of
traffic. As the vehicles passed the area of Walnut Avenue and American Street, the officers heard
additional gunshots. Krieger saw that the shots were fired from the passenger side of one of the
vehicles but could not tell from which vehicle they originated.
¶9 Approximately four blocks down the road, at the intersection of Walnut Avenue and
Winnifred Street, the vehicles split up, with the Tahoe turning east on Winnifred Street and the
Malibu continuing south on Walnut Avenue. Krieger turned off to pursue the Tahoe, while
Anderson continued to follow the Malibu.
¶ 10 The Malibu made its way towards the intersection of Empire Street and Float Avenue
where it slowed almost to a stop, and a passenger, who was later identified as John Carew, exited
from the rear passenger door. The Malibu then turned east on Empire. Anderson looked to see if
there was oncoming traffic and observed the Tahoe also traveling east on Empire Street still being
pursued by Krieger and an additional marked police car. Anderson then radioed in the information
regarding the direction of the Malibu, and got out of his SUV to approach Carew, who had
collapsed in the grass. He handcuffed Carew, lifted his shirt, and saw two bullet holes in his lower
back. Anderson called for an ambulance and stayed with Carew until it arrived.
¶ 11 The Tahoe pursued by Krieger turned south onto Oak Avenue from Winnifred Street, then
east onto Garfield Street, north onto Chicago Avenue, east onto Fuller Street, and north onto
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2022 IL App (2d) 190979-UCarroll Avenue, before turning east onto Empire Street. At this point Officer Ryan Wagand, who
was traveling east on Empire Street in his marked squad car, interposed himself between Krieger
and the Tahoe. Two blocks down the Malibu pulled out from Float Avenue onto Empire Street in
front of the Tahoe. Officer Anderson’s squad camera captured the four vehicles as they drove past
Float Avenue and Empire Street. The front passenger window of the Tahoe was down, revealing
someone driving the vehicle. However, no one was visible in the front passenger seat.
¶ 12 At the intersection of Empire Street and Galena Avenue, the vehicles split up again. The
Malibu, now pursued by Krieger, continued down Empire Street, while the Tahoe turned South
onto Galena Avenue now with Wagand leading the pursuit.
¶ 13 Krieger pursued the Malibu on a circuitous route until it eventually came to a stop at
Shawnee Street and Liberty Avenue. There were two occupants in the vehicle, Paris Williams and
Damon Shipp, who were then taken into custody. Williams was taken from the driver’s seat and
Shipp from the front passenger seat. Officers discovered a .40-Caliber Ruger handgun on the driver
seat floor.
¶ 14 Wagand continued to pursue the Tahoe south on Galena Avenue. The Tahoe then turned
east onto U.S. Route 20, where it nearly collided with a passing semi-truck. Wagand briefly lost
sight of the Tahoe as the semi-truck passed. This was the only point in the chase where the Tahoe
was out of sight of the pursuing officers. Wagand then pursued the Tahoe east on U.S. Route 20
at speeds approaching 100 miles per hour. The Tahoe then turned north onto Rock City Road. As
the Tahoe passed through the town of Ridott, Wagand observed something being thrown from the
vehicle. The object was later recovered by Officer Douglas Hill and found to be a small bag
containing cannabis. The Tahoe eventually crossed a bridge over the Pecatonica River at which
point the Tahoe turned east onto East River Road. The Tahoe appeared to try to turn around but
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2022 IL App (2d) 190979-Uended up getting stuck in a ditch on the north bank of the river.
¶ 15 Wagand stopped on East River Road, exited his vehicle, and circled around it. At that point
he observed persons exiting the passenger side of the vehicle. He drew his service weapon and
ordered them to show their hands. Wagand testified that at the time he believed he saw three
persons exiting the vehicle, but that he actually only saw two. Wagand saw one subject run south
toward the river, and another subject running east into a copse of trees along the bank of the river.
Then he saw the individual who had run toward the river return to the vehicle. Wagand chased
after the individual running east, who turned out to be the defendant. As he was giving chase,
Corporal Robyn Stovall passed him in her squad car. Wagand caught up to defendant
approximately 100 yards from the Tahoe, where he surrendered. As Wagand caught up to
defendant, he could be heard saying, “They got me. Police got me. I’m going to jail. Alright?”
Defendant then threw his phone into the river, and Wagand and Stovall took defendant into
custody. Wagand’s and Stovall’s squad cars were equipped with squad cameras, which recorded
these events. Wagand wore a body camera which also captured the events.
¶ 16 Hill arrived at East River Road shortly after Wagand did. As he arrived, he observed
Wagand pursuing defendant eastbound. He then observed Brown in the river up to his chest and
ordered him to exit the water. As Brown was coming out of the water, Hill observed Brown had
something in his right hand. Hill ordered Brown to drop it, which he did. Hill’s squad car was
equipped with a squad camera that captured the events.
¶ 17 As Wagand, Hill, and Stovall arrived at the scene, their squad cameras captured a white
Chrysler traveling eastbound on East River Road pull out onto the southbound lane of Rock City
Road, and then turn around and begin traveling west on East River Road. Stovall identified the
vehicle as belonging to Tristan Euell, who defendant would identify as the owner of the Tahoe.
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2022 IL App (2d) 190979-UDetective Chris Schenberger also observed Euell and his white Chrysler traveling west on East
River Road as he was traveling to the site where the Tahoe stopped.
¶ 18 Based on Wagand’s belief that he had seen three people exit the Tahoe, police continued
to search the area for a third person. However, no third person was located.
¶ 19 B. Physical Evidence
¶ 20 From the area of Walnut Avenue and Pleasant Street where the first round of shots was
fired, officers recovered nine 9-millimeter shell casings from the west side of Walnut Avenue.
Across the street on the eastern side of Walnut Avenue was a fence which formed the boundary of
the playground of Aquin Elementary School. The 9-millimeter shell casing found furthest from
the school was 58 feet away from the property. Officers recovered five .40-caliber shell casings
from the area of Walnut Avenue and American Street, where the second round of shots had been
fired.
¶ 21 After the chase, Krieger went to the area of 402 South Walnut and observed what he
believed to be two bullet holes in the front siding of the home. 402 South Walnut faces Washington
Place, which terminates at the intersection of Walnut Avenue, such that a vehicle traveling
westbound on Washington Place would be facing towards 402 South Walnut. Krieger returned on
February 1, 2017, and attempted to recover bullets from the home. The home was covered in
siding, then foam board, then a thin layer of house wrap, and finally behind that was brick. Krieger
removed the siding and foam board but recovered no bullets. Photographs of the holes and damage
were admitted into evidence.
¶ 22 After defendant and Brown were taken into custody, officers located and recovered a set
of car keys, a blue USB charging cord, and a plastic baggie corner with white powder. The parties
stipulated that the baggie corner and its contents were sent to the Illinois State Police Rockford
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2022 IL App (2d) 190979-UCrime Lab for examination. The baggie corner was found to contain six smaller baggie corners,
one with .5 grams of heroin and five which contained a total of 1.1 grams of cocaine.
¶ 23 The parties stipulated that Carew was taken to a hospital and treated for multiple gunshot
wounds. Two bullets were removed from his body and given to an attending police officer. As a
result of the gunshot wounds, one of Carew’s kidneys had to be removed.
¶ 24 The parties stipulated that Crime Scene Investigator (CSI) Angela Matthews searched both
the Tahoe and Malibu, which had been taken to the city maintenance yards. Matthews found
defendant’s driver’s license on the driver’s side floorboard of the Tahoe. Matthews identified
seven defects in the rear of the Malibu which were consistent with bullet holes. Likewise, there
were three defects in the rear interior of the trunk, which continued through the rear passenger seat
into the interior of the vehicle consistent with bullets entering the interior of the vehicle. She
identified which defects in the rear of the Malibu corresponded to those in the trunk’s interior and
from that formed the opinion that the bullets were fired in a left to right trajectory. Matthews also
recovered a bullet from the inside of the trunk.
¶ 25 The parties stipulated that the recovered bullets, shell casings, and Ruger handgun were
sent to the Illinois State Police Rockford Crime Lab for examination. The five .40-caliber shell
casings recovered from the area of Walnut Avenue and American Street were determined to have
been fired by the Ruger recovered from the Malibu. That bullet recovered from the Malibu and the
two bullets recovered from Carew’s body were found to have been fired by the same 9-millimeter
caliber firearm and were not fired by the Ruger. The 9-millimeter shell casings recovered from the
area of Walnut Avenue and Pleasant Street were found to have been fired by the same firearm and
were also not fired by the Ruger.
¶ 26 C. Defendant’s Statements
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2022 IL App (2d) 190979-U¶ 27 Defendant gave three different interviews with police but did not testify at trial. The first
interview was with Stovall on January 23, 2017. Defendant stated that prior to the shooting, he and
Brown had gone to Zay’s store to get some nachos. Defendant was driving the Tahoe west on
Iroquois Street, and as he crossed Galena Avenue, at the point where Washington Street and
Iroquois Street merge into Washington Place, 1 is where he first saw the Malibu. The Malibu turned
left onto Walnut Avenue from Washington Place. He knew three people were in the Malibu but
did not know who they were. He then stopped at a stop sign at the intersection of Washington
Place and Walnut Avenue to eat his nachos. Brown then urged him to turn left. Defendant was
confused by Brown’s insistence as he was just eating his nachos and not texting or doing anything
illegal.
¶ 28 Defendant then turned left onto Walnut Avenue, and the rear passenger door of the Malibu
opened up and someone fired several shots towards them. Neither the Malibu nor defendant’s
vehicle stopped. After passing Broadway Street, defendant became aware that Krieger and
Anderson’s vehicles were pursuing them. Brown urged defendant to keep going and he did so,
driving straight down Walnut Avenue. In the area between Homer Street and American Street, the
front passenger door of the Malibu opened and someone fired more shots at them. One of them
went through the windshield of the Tahoe, causing defendant to swerve. He then described the
path he took to get to East River Road. Immediately prior to his apprehension by police, Moore
had been on the phone with his girlfriend, and he threw his phone into the river because he was
mad.
1
Defendant referred to this area as Pleasant Street, but based on his description of the area
and subsequent statements to police, it is evident that he was referring to Washington Place.
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2022 IL App (2d) 190979-U¶ 29 Defendant stated that no one in the Tahoe had a gun and that no one in the Tahoe fired a
gun. He fled because he panicked and because he thought that Brown had drugs on him. He was
not directed where to go. He did not throw anything out of the vehicle. He did not know who was
in the red vehicle.
¶ 30 At around 5:01 p.m. on January 23, 2017, Detective Tony Bradbury interviewed defendant.
Defendant’s account largely mirrored his previous interview with Stovall. The Tahoe belonged to
Euell. Brown had asked if he would drive him around that day as Brown did not have a license.
He agreed and Brown drove the Tahoe to defendant’s house after which point defendant drove.
¶ 31 Defendant was incarcerated and charged. Afterward Bradbury received three phone calls
that defendant wanted to speak with him.
¶ 32 On January 24, 2017, defendant gave a recorded statement to Bradbury and Krieger. The
statement included more details than his previous statement and differed in several ways.
Specifically, defendant said that he agreed to drive Brown around in the hopes that they would
later smoke some weed together. When Brown arrived to pick defendant up, there was a third
person in the Tahoe. Before purchasing their nachos, defendant first dropped this person off near
Horizon Supermarket and then took Brown over to Illinois Street, where Brown exited the Tahoe
to meet with someone. Defendant did not know what the meeting was about, but believed it to be
a drug deal.
¶ 33 Regarding the shooting, defendant stated that after the Malibu initially fired at them near
the area of Pleasant Street and Walnut Avenue, Brown produced a decent sized black automatic
handgun from his person and fired at the Malibu out the passenger side window. Brown used his
right hand as he had previously been shot 19 times and his left arm and leg did not move well.
Defendant stated that he did not know Brown had a gun prior to the shooting. Brown had thrown
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2022 IL App (2d) 190979-Uthe gun out near U.S. Route 20 and Galena Avenue after the Tahoe almost collided with the semi-
truck. Defendant did not know what the dispute was between Brown and the occupants of the
Malibu which led to the shooting, but he had subsequently heard that it had to do with an ongoing
issue between Shipp and Brown. Defendant’s explanation for the changes in his statement was that
initially he did not want to be labeled a snitch, but that he did not want to go to jail or be charged
with something he did not do because he was not the shooter.
¶ 34 The trial court found defendant guilty of two counts of aggravated fleeing, aggravated
discharge of a firearm within 1000 feet of a school, and aggravated battery with a firearm.
Defendant was sentenced to 10 years imprisonment. Defendant timely appealed.
¶ 36 II. ANALYSIS
¶ 37 Defendant argues that the State failed to prove beyond a reasonable doubt that he was
accountable for Brown shooting at the Malibu because it did not prove that defendant shared
Brown’s intent or that defendant and Brown shared a common criminal design.
¶ 38 When considering the sufficiency of the evidence, a reviewing court, viewing the evidence
in the light most favorable to the State, must consider whether any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 318-19 (1979). A reviewing court will not substitute its judgment for that of the trier of fact
on the credibility of witnesses or the weight of the evidence. People v. Cooper, 194 Ill. 2d 419,
431 (2000). The same standard applies whether the evidence is direct or circumstantial (People v.
Thomas, 178 Ill. 2d 215, 232 (1997)), and whether there is a bench or jury trial (People v. Howery,
178 Ill. 2d 1, 38 (1997)). Therefore, a conviction will be reversed only if the evidence is so
unreasonable, improbable, or unsatisfactory that it justified a reasonable doubt of the defendant’s
guilt. People v. Wheeler, 226 Ill. 2d 92, 115 (2007).
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2022 IL App (2d) 190979-U¶ 39 A person commits aggravated battery with a firearm when in committing a battery, he or
she knowingly discharges a firearm and causes any injury to another person. 720 ILCS 5/12–
3.05(e)(1) (West Supp. 2017). Defendant does not dispute that Brown committed aggravated
battery with a firearm and challenges only the trial court’s accountability finding.
¶ 40 “A person is legally accountable for the conduct of another when *** either before or
during the commission of an offense, and with the intent to promote or facilitate that commission,
he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or
commission of the offense.” 720 ILCS 5/5-2(c) (West 2016). “Unless the accomplice intends to
aid the commission of a crime, no guilt will attach.” (Emphasis in original.) People v. Shaw, 186
Ill. 2d 301, 322 (1998). “To prove that the defendant possessed the intent to promote or facilitate
the crime, the State must present evidence which establishes beyond a reasonable doubt that either:
(1) the defendant shared the criminal intent of the principal, or (2) there was a common criminal
design.” People v. Perez, 189 Ill. 2d 254, 266 (2000).
¶ 41 The mere presence at the scene of a crime will not render a defendant accountable for the
crime, even when joined with flight from the crime or knowledge of its commission. Id. at 268.
However, flight may be considered as a factor in determining whether a defendant is accountable.
People v. Taylor, 164 Ill. 2d 131, 141 (1995).
¶ 42 A. Bullet Holes
¶ 43 As a preliminary matter we address defendant’s argument that the trial court’s ruling
contradicted itself regarding the alleged bullet holes at 402 South Walnut Avenue. The trial court
stated:
“This Court does not find that enough evidence was presented to make that
determination, that even though they were referred to as bullet holes throughout the
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2022 IL App (2d) 190979-Utestimony, those round defects showed no penetration into the home at 402 South Walnut.
There were no bullet fragments found. And the bullet holes that did enter the red Chevy
Malibu were bullet holes that had penetrated metal.
This was a frame house on 402 South Walnut and again the Court does not find that
those round defects were bullet holes.”
Defendant maintains that the trial court contradicted itself when later, in finding that defendant
shared Brown’s intent to shoot, it considered a scenario in which the holes on 402 South Walnut
Avenue were bullet holes stating,
“Let’s look at this two ways. If the shots first came from Mr. Brown, and those
round defects were actually gunshot holes, the only way that those shots could have been
made was when the car was heading west and not heading south on Walnut.
When Mr. Moore turned the car left on Walnut to begin the chase, he engaged in
the criminal activity that had been started by Mr. Brown.”
Accordingly, defendant maintains that the trial court’s hypothetical regarding the bullet holes
should not be considered in determining whether the State met its burden of proving defendant
guilty beyond a reasonable doubt.
¶ 44 We do not find that the trial court contradicted itself in rendering its ruling. At trial, the
State and the defense set forth two theories explaining the initial two to three gunshots followed
by another eight to ten shots as heard by Anderson and Krieger. The State argued that the first two
to three shots were Brown firing in the direction of the Malibu before it turned onto Walnut
Avenue, and then the eight to ten shots were Brown firing at the Malibu after turning the corner
onto Walnut Avenue. Defendant argued that the first two to three shots were caused by someone
in the Malibu firing at the Tahoe and the eight to ten shots were Brown returning fire. There was
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2022 IL App (2d) 190979-Uno physical evidence in the form of bullets or shell casings to definitively prove either theory of
the first two to three shots. In making its ruling the trial court considered both scenarios and their
effect on defendant’s accountability, ultimately determining that under either scenario defendant
would have been accountable. This hypothetical exercise was done to examine the posited
scenarios and was not a subsequent determination that the defects were in fact bullet holes.
Accordingly, there was no contradiction as to this point.
¶ 45 B. Shared Criminal Intent
¶ 46 Defendant argues that the facts of this case mirror those in People v. Taylor 186 Ill. 2d 439(1999), and that the same reasoning should apply in this case. In Taylor the defendant was driving
with his friend, who showed the defendant a handgun which he produced from his pocket. Id. They
continued driving around, and after turning onto a narrow street, nearly collided with another
vehicle. Id. at 442-43. The occupants of the other vehicle exited the vehicle, and one of them
shouted a racial slur at the defendant and his friend. Id. at 443. The friend told the defendant to
stop the car, and he exited and fired two shots in the general direction of the occupants of the other
vehicle. Id. at 443-44. The friend then returned to the car, and the defendant drove away. Id. at
444. The Taylor court determined that the defendant could not be held accountable for the shooting
because he neither knew his friend intended to shoot at the occupants of the other vehicle, nor did
he make any effort to aid him in doing so. Id. at 448. Further, the unforeseeability and spontaneity
of the traffic altercation militated against a finding that the defendant shared the friend’s intent to
shoot. Id. The court likewise held that because the defendant did not facilitate or intend to facilitate
the shooting, and because escape was not an element of aggravated discharge, the defendant was
not accountable for the shooting. Id. at 449.
¶ 47 The Taylor court heavily relied on People v. Dennis, 181 Ill. 2d 87 (1998). In Dennis the
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2022 IL App (2d) 190979-Udefendant drove his companion to a drug house with the intent of purchasing heroin. Id. at 90. His
companion exited the vehicle, and the defendant turned away from the drug house down an alley
where he waited for his companion to return. Id. at 90-91. The defendant then saw his companion
running towards the vehicle chased by an unknown man. Id. at 91. His companion entered the
vehicle, and they drove away. Id. The defendant initially believed his companion had been fleeing
a drug bust, but unbeknownst to the defendant, his companion had produced a gun and proceeded
to rob two men in a pickup truck parked around the corner of the alley, taking a car radio/CD
player. Id. The court held that because escape was not an element of armed robbery, the court’s
instruction that the activities involved in escaping could be considered as part of the offense was
in error. Id. at 106-07
¶ 48 In People v. Fernandez, 2014 IL 115527, our supreme court evaluated the holdings in
Dennis and Taylor and clarified that they addressed the shared intent category of accountability
and that both cases stand for the principle that one cannot share the intent to promote or facilitate
the commission of a crime when one does not know that a crime is going to be committed. Id. ¶
20. This is not the rule for common design cases, which is where one aids another in the planning
or commission of an offense, they are legally accountable for any criminal act by the person he
aids which is done in furtherance of the planned and intended act. Id. ¶ 21; People v. Kessler, 57
Ill.2d 493, 497 (1974).
¶ 49 We find that the facts in this case are distinguishable from those in Taylor and Dennis in
several respects. In both of those cases the principal exited the vehicle and committed the offense
largely outside the presence of the driver, such that the drivers had limited opportunity to either
help or hinder their compatriots’ misdeeds. In both cases the victims were random with no previous
connections to the defendants or their companions. Finally, the escapes immediately took the
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2022 IL App (2d) 190979-Uparties away from the victims, such that there was no chance of further harm being meted upon
them.
¶ 50 Whereas in the instant case, defendant was in the vehicle with Brown when the shots were
fired and had the opportunity to help or hinder Brown’s actions. Further, while defendant argues
the encounter occurred by happenstance, Brown did have some kind of history with Shipp which
makes the accompanying violence more foreseeable and less spontaneous. Finally, a significant
portion of defendant and Brown’s attempted escape consisted of defendant driving the Tahoe while
closely following the Malibu which the trier of fact could consider to be an active pursuit of the
Malibu.
¶ 51 Indeed, that is the most singular aspect of these facts. But for the officers’ presence, the act
of following the Malibu would clearly evidence an intent on defendant’s part to assist in Brown’s
assault on the vehicle. Alternatively stated, the officers’ presence gives defendant the plausible
argument that his sole concern was evading the police, and his apparent pursuit of the Malibu was
really flight from the police, which was the argument he made in his statements to the police.
¶ 52 However, this argument is belied by other factors. First, Anderson and Krieger were in the
area of Broadway Street and Walnut Avenue prior to the chase. Defendant had to drive from
Washington Place and Walnut Avenue, past Pleasant Street and then Broadway Street before the
police had the opportunity to get behind them. By the time defendant passed Broadway Street, the
Tahoe was traveling at speeds between 40 and 50 miles per hour, between one and three car lengths
behind the Malibu. This shows that defendant’s pursuit of the Malibu began prior to the police’s
intervention and cannot be excused as mere flight from the police. Second, defendant continued to
pursue the Malibu for 11 blocks before giving up his pursuit. During that time defendant followed
the Malibu so closely that Shipp felt either endangered or enraged enough to fire at least five shots
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2022 IL App (2d) 190979-Uat the pursuing Tahoe, despite the presence of police. The trial court found that “it was not until
the bullet crashed directly through [ defendant’s] windshield and whizzed by [his] head, nearly
missing killing [him] that [he] stopped that chase.” However, even that is too generous. It was not
until four blocks later that defendant eventually gave up pursuit of the Malibu. From all this it is
not unreasonable to conclude that defendant’s pursuit of the Malibu was not merely coincidental
with his fleeing, but rather was executed with ill intent.
¶ 53 However, as defendant correctly points out, by the time police observed defendant’s pursuit
of the Malibu, the offense of aggravated battery was complete, and no further crimes other than
those related to the fleeing occurred. As to what occurred prior to the police’s involvement, we
only have defendant’s word. Defendant stated that he did not know Brown had a gun until Brown
produced it to return fire at the Malibu, and that after Brown fired his gun, defendant was driving
to evade the police. Therefore, defendant maintains that the State failed to prove him accountable
beyond a reasonable doubt. However, criminal intent may, and often must be proven by
circumstantial evidence. People v. Johnson, 2019 IL 123318, ¶ 25.
¶ 54 There are several flaws in defendant’s version of events. First, defendant admitted to lying
in his first two statements to the police, which negatively affected his credibility. Second, as
discussed previously, it can reasonably be inferred that defendant’s pursuit of the Malibu was
intentional. It can further be inferred by the rate of speed at which the vehicles crossed Broadway
Street, and their proximity to Walnut Avenue and Pleasant Street, that defendant’s pursuit of the
Malibu had to begin near that area, and possibly prior to Brown’s shooting. This is bolstered by
the ballistic evidence which showed that the shots were fired in a left to right trajectory, which
means that in order for the shots to have been fired out of the passenger side window, the Tahoe
would have had to have been significantly left of the Malibu, likely over the centerline of the road.
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2022 IL App (2d) 190979-UTogether, from the ballistic evidence and pursuit of the Malibu, a rational trier of fact could have
concluded that defendant shared Brown’s intent to fire at the Malibu and facilitated the shooting
by positioning the car in a manner which favored Brown’s aim. See People v. Salazar, 2014 IL
App (2d) 130047, ¶ 57 (The defendant was accountable where he aided in the commission of a
shooting by piloting his vehicle in a manner which facilitated the passenger’s shooting.).
¶ 55 C. Common Criminal Design
¶ 56 We also find that defendant could be found accountable under a common criminal design
theory. “Under the common-design rule, if ‘two or more persons engage in a common criminal
design or agreement, any acts in the furtherance of that common design committed by one party
are considered to be the acts of all parties to the design or agreement and all are equally responsible
for the consequences of the further acts.’” Fernandez, 2014 IL 115527, ¶ 13 (quoting In re W.C.,
167 Ill. 2d 307, 337 (1995)). Words of agreement are not necessary to establish a common criminal
design, and accountability may be established through a defendant’s knowledge of and
participation in the criminal scheme, even where the defendant did not directly participate in the
crime itself. Perez, 189 Ill. 2d at 267. “Evidence that a defendant voluntarily attached himself to a
group bent on illegal acts with knowledge of its design supports an inference that he shared the
common purpose and will sustain his conviction for an offense committed by another.” In re W.C.,
167 Ill. 2d at 338. Where one aids another in the planning or commission of an offense, they are
legally accountable for any criminal act by the person he aids which is done in furtherance of the
planned and intended act. Fernandez, 2014 IL 115527, ¶ 21; Kessler, 57 Ill.2d at 497.
¶ 57 As previously discussed, from defendant’s pursuit of the Malibu and the ballistic evidence
a rational trier of fact could conclude that defendant intentionally aided Brown in the commission
of the shooting. This is enough to find accountability under a common criminal design theory.
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2022 IL App (2d) 190979-U¶ 58 However, there is additional circumstantial evidence which speaks to a common criminal
design. “Proof that the defendant was present during the perpetration of the offense, that he fled
from the scene, that he maintained a close affiliation with his companions after the commission of
the crime, and that he failed to report the crime” are factors which may be considered in
determining accountability. Perez, 189 Ill. 2d at 267. Defendant was present during the shooting,
d defendant drove the vehicle in the direction of the Malibu, defendant fled with Brown, and while
defendant’s opportunity to dissociate himself from Brown or report the crime were limited by his
swift apprehension, it could be argued that defendant’s first attempts to deny that anyone in the
Tahoe had or shot a gun both demonstrate an attempt to maintain an alliance with Brown and
constitute a failure to report what defendant knew about the crime. Additionally, defendant said
he threw his phone into the river, ostensibly out of anger, but perhaps with the intent of destroying
evidence. See People v. Price, 2021 IL App (4th) 190043, ¶ 127 (Destruction of evidence is
admissible for the purpose of showing consciousness of guilt.). Therefore, a rational trier of fact
could have found defendant accountable for the shooting beyond a reasonable doubt based on a
common criminal design theory.
¶ 59 III. CONCLUSION
¶ 60 For the reasons stated, we affirm the judgment of the circuit court of Stephenson County.
¶ 61 Affirmed.
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