People v. Mosqueda , 2024 IL App (1st) 210705-U ( 2024 )

2024 IL App (1st) 210705-USIXTH DIVISION
March 8, 2024
No. 1-21-0705
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. ) No. 20 CR 3580
)
Alijandro Mosqueda, ) The Honorable
) Ramon Ocasio III
Defendant-Appellant. ) Judge Presiding.
JUSTICE TAILOR delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: The judgment of the trial court is affirmed in part and vacated in part. We find the
evidence sufficient to convict the defendant of aggravated battery but vacate several
of defendant’s convictions as violative of the one act, one crime rule.
¶2 I. BACKGROUND
¶3 Defendant Alijandro Mosqueda (Mosqueda) was charged by indictment with seven counts
of aggravated battery (720 ILCS 5/12-3.05 (West 2020)). Counts 1 through 3 pertained to victim
Jose Pena (Pena) and Counts 4 through 7 pertained to victim Ana Irizarry (Irizarry). Following a
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bench trial, the trial court found Mosqueda guilty of all seven counts of aggravated battery and
sentenced him to four years’ imprisonment on each of the seven counts, to run concurrently.
¶4 Mosqueda was tried on March 16, 2021, and the State presented the following evidence.
Pena testified that on February 1, 2020, around 11 p.m., he arrived at Perception Lounge
(Perception) in Berwyn, Illinois with his girlfriend Marisela Ramirez (Ramirez). Around 2 a.m.,
he noticed that Ramirez and an older woman, Maria Mosqueda (Maria), were inches apart arguing
with each other near the dance floor. As he walked towards Ramirez and Maria, Maria’s son,
Mosqueda, stopped him. Mosqueda told Pena, “[g]et your girl. That’s my mother.” He replied,
“[o]kay, I didn’t know.” Mosqueda replied, “[d]on’t talk to me like that.” He then walked over to
Ramirez, patted her on her back, and said, “[h]ey, let’s just go.”
¶5 Pena testified that he and Ramirez turned around so their backs were facing Maria.
Mosqueda was sitting at a table to the right. As he walked away, he “just felt the glass,” “started
to gush blood,” and was “literally taking pieces of glass off [his] head.” The glass hit him on the
forehead, two inches from his eyebrow. Sometime after, both an ambulance and the police arrived
at Perception. He was taken by ambulance to MacNeal Hospital where he received five stiches on
his forehead. The incident left him with a permanent scar on his forehead.
¶6 Pena testified that he walked away from the confrontation and never touched Maria, nor
did he see Ramirez have physical contact with Maria. The State introduced a photograph of Pena’s
forehead showing a gash on his forehead. On cross-examination, Pena testified that when he was
10 to 20 feet away from Ramirez and Maria, he believed they were arguing but he could not hear
them. He went over to Ramirez because he did not want the argument to escalate. He testified that
while Mosqueda was speaking to him in an aggressive matter, he never yelled back. He was about
an arm’s length or about two feet away from Mosqueda as they were leaving. Perception was semi-
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crowded at the time of the incident. He talked to the bouncer “Big Homie” about the incident, and
he saw the bouncers carry Mosqueda away. Pena acknowledged that he had previously been
convicted of driving under the influence.
¶7 Ramirez testified that she had no more than two drinks on the night of the incident. She
knew Maria and saw that Maria arrived at Perception with her “little crew.” She kept her distance
because she and Maria had an “incident before.” Ramirez had previously met Maria’s son,
Mosqueda, and identified him in open court.
¶8 The bartender at Perception told Ramirez that Maria was talking about Ramirez bringing a
new guy (Pena) to Perception. Ramirez testified, “I walked over to Maria because I wanted to talk
to Maria and tell her not to start any commotion in the bar between my boyfriend and my ex’s
brother.” Ramirez and Maria were just a couple inches apart facing each other. Mosqueda was about
eight feet from them. Ramirez testified she told Maria, “[d]on’t start no shit.” Maria replied, “I don’t
want to start nothing. I don’t want to catch a case.” Ramirez testified that their voices were raised
because they were in a club, and it was loud to begin with. She testified that because she did not intend
for there to be an altercation, she did not ask Pena for backup. As she and Maria were talking, Pena
walked over and tapped her on the shoulder and said, “[l]et’s just go.” She turned around so her back
was to Maria and Pena. She did not see Pena speak to Maria.
¶9 As she walked away, the bar was to her left and Mosqueda to her right, and Pena was directly
behind her. She heard Mosqueda say something and when she turned around, she saw that “the glass
had already hit Pena.” She was unsure if Mosqueda threw something. “Big Homie”, the security guard
at the club, grabbed Mosqueda, and Ramirez attended to Pena who was “gushing with blood.” She
tried to stop the bleeding with a rag.
¶ 10 On cross-examination, Ramirez testified that she stopped hanging out with Maria a year or two
ago and knew of Mosqueda but never “socialized with him.” She was upset that Maria was talking
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about her. She had previous problems with Maria, and they were not on speaking terms. Although
Maria was a troublemaker, Ramirez was the one who approached Maria that night. She did not see the
glass leave Mosqueda’s hand but saw “him with his hand raised.” Ramirez knew Anthony Swiatek
(Swiatek) as a bouncer at Perception.
¶ 11 Swiatek testified that he was working security at Perception on February 1, 2020, until the
morning of February 2, 2020. He did not have any alcohol or drugs while he was working. If someone
had too much to drink or was “causing problems” they were “escorted out” of Perception. Ramirez and
Maria were regulars at Perception. He knew Mosqueda because he regularly came to the bar with his
mother, Maria.
¶ 12 Swiatek testified that at 2 a.m. on February 2, 2020, he observed Maria dancing next to the
DJ booth with a “blonde female and an African male.” Maria was to his left and about eight to
nine feet away. Mosqueda was adjacent to Maria sitting at a table with an unidentified female.
Swiatek was in front of the table where Mosqueda was sitting. Mosqueda was to his left within
arm’s reach. Ramirez came from behind him to his right as she walked over to Maria. Ramirez and
Maria began their “elevated conversation and it got heated.” They started “shoving on each other”
but he did not know who started it. He and Big Homie separated them. Pena then pulled Ramirez
back.
¶ 13 Swiatek testified that as Pena was pulling back Ramirez, “a glass came flying from my left,
thrown in the direction of Ramirez and caught Pena right in the face.” The only people to his left
were Mosqueda and the unknown female. As the glass went by him, Swiatek saw Mosqueda
“finishing a throwing motion.” Swiatek demonstrated the motion he observed Mosqueda make by
moving his arm forward from a vertical position to where it was parallel to the ground. The
unknown female next to Mosqueda was not moving. He was close enough to Mosqueda that he
could have “reached over and touched” him. Swiatek had a clear and unobstructed view of
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Mosqueda’s face. He told police he could identify the person making the “throwing motion” and
agreed to a “show up identification[.]” Police officers then transported him to where other officers
had pulled over a vehicle with Mosqueda inside. Police officers put a spotlight on Mosqueda and
asked Swiatek, “[i]s this the gentleman?” He told police officers it was.
¶ 14 On cross-examination Swiatek acknowledged that were 200 people in Perception on
February 1, 2020, but explained that was not many patrons given the size of the club. Perception
was dark and strobe lights were “going the whole time.” Maria and Ramirez were a foot apart
during their encounter, but he intervened when they “got nose-to-nose.” Big Homie grabbed Maria
and pulled her back while another bouncer went to grab Ramirez. Swiatek positioned himself so
that Mosqueda was behind him but at a diagonal so he could concentrate on him as well as the
physical encounter between Maria and Ramirez. Swiatek kept an eye on Mosqueda because
Mosqueda had been at the club before and had to be escorted out. Swiatek first saw the glass when
it flew past him, and then he saw it strike Pena who was walking behind Ramirez. He was
perpendicular to Mosqueda the whole time and observed Mosqueda finishing a throwing motion.
Using a baseball reference, Swiatek described how Mosqueda “finished the bottom half of the
throw.” On recross, Swiatek admitted that while there was a video recording system inside
Perception, he did not have access to any video from February 2, 2020.
¶ 15 Irizarry testified that she sustained a permanent disability when a shard of glass punctured
her left eye in the morning of February 2, 2020. She worked as a cashier before the injury, but had
to stop because she could not see the register and had constant migraine headaches.
¶ 16 Irizarry was facing the bar area of Perception when security rushed past her and “spun [her]
around.” She then felt something fall into [her] eye.” An ambulance took Irizarry to MacNeal
Hospital but when they could not treat her, she was transported to Loyola Medical Center. A
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surgeon removed a piece of glass from her eye. She had to go to follow-up treatment every week
for five months, put drops in her eye every day, and wear an eye patch until she had a subsequent
surgery. Irizarry testified on cross-examination that she did not see who threw the glass.
¶ 17 The prosecution rested. Defense counsel moved for a directed verdict, which the trial court
denied. Mosqueda did not testify, and the defense rested.
¶ 18 The trial court found defendant guilty of all charges, making the following factual findings:
“Anthony Swiatek, who testified here today, testified that he saw the end result of what
appeared to be a throw. Given the timeframe of the circumstances, I believe that the State
has shown beyond a reasonable doubt that [Mosqueda] threw this bottle directed at Mr.
Jose Pena and that caused damage to his head and Ms. Ana Irizarry’s eye, which included
the permanent disability and disfigurement. I believe the State did meet its burden beyond
a reasonable doubt.”
¶ 19 Mosqueda filed a motion for new trial on March 29, 2021, arguing that he was charged
because a fight was going on “involving [his] family and that lead [sic] the trier of fact to interpret”
that he threw the glass. The state responded in part that based on the credible testimony of Swiatek,
it was clear that Mosqueda “was the only person who could have thrown that glass.” The trial court
denied the motion.
¶ 20 The trial court sentenced Mosqueda to four years’ imprisonment on each of the seven
aggravated battery counts, to run concurrently. Mosqueda filed a motion to reconsider arguing that
he was eligible for probation and that there was an anger management program he could attend.
The trial court denied the motion. This timely appeal followed.
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¶ 21 II. ANALYSIS
¶ 22 On appeal, Mosqueda argues that his convictions should be overturned because the State’s
evidence was insufficient to prove beyond a reasonable doubt that he rather than someone else
from Maria’s “little crew” threw the glass. Specifically, he contends that because no one actually
saw who threw the glass, the State’s case was circumstantial, and the inferences drawn by the trial
court were not reasonable.
¶ 23 In response, the State contends that the circumstantial evidence presented at trial was
sufficient to prove Mosqueda was guilty beyond a reasonable doubt and the State is not required
to disprove every hypothesis consistent with innocence to obtain a conviction. Furthermore,
because the trial court is best equipped to judge the credibility of the witnesses, we must defer to
the reasonable inferences that the trial court drew based on Swiatek’s observations.
¶ 24 We will not reverse a conviction unless the evidence is so unreasonable, improbable, or
unsatisfactory that it raises a reasonable doubt of defendant’s guilt. People v. Jackson, 2020 IL
124112, ¶ 64. Thus, the critical question before us is whether trial evidence supports a finding of
guilt beyond a reasonable doubt regardless of whether the evidence is direct or circumstantial.
People v. Wheeler, 226 Ill. 2d 92, 114 (2007). The trial court is best equipped to judge the
credibility of the witnesses and “due consideration must be given to the fact that it was the trial
court that saw and heard the witnesses.” Id. at 114-15.
¶ 25 To convict Mosqueda of aggravated battery, the State had to prove that he committed
battery in that he caused bodily injury to an individual, other than by the discharge of a firearm,
and he knowingly caused permanent disability or permanent disfigurement, or committed a battery
with a deadly weapon, other than a firearm. See 720 ILCS 5/12-3.05(a)(1), (f)(1) (West 2020).
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¶ 26 Mosqueda argues that while the State’s evidence showed that Mosqueda could have thrown
the glass, the evidence did not show that he was the only person present who could have and would
have had reason to do so. Mosqueda relies on In re Gregory G., where a security guard was
breaking up a fight between two women, one of whom was the juvenile respondent’s mother. In
re Gregory G., 396 Ill. App. 3d 923, 924 (2009). The scene was “chaotic and there were over 100
people surrounding the fight. Id. at 924. As he was breaking up the fight, the security guard was
“smacked in the back of the head with [a] beer bottle, which broke.” Id. The security guard did not
see who hit him with the bottle. Id. “[T]wo to three minutes later” he turned around and saw the
[juvenile] respondent standing ten feet away and holding a broken beer bottle and did not see
anyone else with a bottle. Id. at 925. When police officers arrived, they described the scene as
“utter chaos” and that bottles and rocks were being thrown. Id. The juvenile respondent was
convicted, but the Appellate Court reversed, reasoning that there was limited circumstantial
evidence:
“The State directly proved that [security guard] was hit by a bottle and that [juvenile]
respondent possessed a broken bottle. But others also possessed bottles during the melee.
And, significantly, there was a two-minute lapse between when [security guard] was hit
and when he turned around, which makes the inferences of [juvenile] respondent’s guilt
even more tenuous. Lastly, [juvenile] respondent was standing 10 feet away when
[security guard] observed him, while the other 99 people were also standing in the same
vicinity. The evidence here raises a suspicion that [juvenile] respondent was the culprit in
the battery of [security guard], but it is not sufficiently conclusive and does not produce a
reasonable and moral certainty that [juvenile] respondent, and not one of the other 99
people involved in the fight, committed the crime. Under these circumstances, the trial
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court stretched the limited circumstantial evidence beyond a reasonable inference.” Id.929-30
Mosqueda argues that as in In re Gregory G., the evidence here is not sufficiently conclusive
because the victims were hit by glass objects and a club like Perception has many glass objects.
Moreover, there were 200 people inside the club, there was another unidentified female next to
Mosqueda, and there were two other people with Maria that night. We do not find Mosqueda’s
reliance on In re Gregory G. to be persuasive as the facts are readily distinguishable. Here, there
was no mass altercation surrounding Mosqueda, there was no time lapse between the glass hitting
Pena and Swiatek observing Mosqueda’s arm in the tail end of a throwing motion, and by all
accounts Mosqueda was arm-length or two feet away from Swiatek. The only other person directly
in the vicinity of Mosqueda was an “unidentified female” but unlike Mosqueda she did not appear
to be moving at the time Swiatek observed Mosqueda’s arm in motion.
¶ 29 Mosqueda’s argument that the evidence does not establish that he, rather than another
member of Maria’s “little crew”, threw the glass, also misses the mark. The State is not required
to disprove that someone other than Mosqueda could have thrown the glass simply because the
evidence supporting the conviction is circumstantial. See People v. Pintos, 133 Ill. 2d 286, 291
(1989) (holding that “the reasonable hypothesis standard of review is no longer viable in Illinois.
Instead, *** the reasonable doubt test *** should be applied in reviewing the sufficiency of
evidence in all criminal cases, whether the evidence is direct or circumstantial.”).
¶ 27 Mosqueda’s broader sufficiency of the evidence argument also fails. Mosqueda’s argument
hangs on Swiatek’s testimony about seeing Mosqueda “finishing a throwing motion.” Relying on
People v. Ortiz, 196 Ill. 2d 236, 267 (2001), Mosqueda argues that Swiatek’s testimony about
Mosqueda finishing a throwing motion is “contrary to human experience.” We are unpersuaded
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by Mosqueda’s attempts to call into question the description of the mechanics of an arm in
throwing motion or to present alternatives as to why a more innocent interpretation—like someone
pointing—could also look like “finishing a throwing motion.” The trial court was in a superior
position to assess the credibility of witnesses, resolve inconsistencies, weight the testimony, and
draw inferences. People v. Jackson, 358 Ill. App. 3d 927, 941 (2005). The trial court credited
Swiatek’s testimony that he observed Mosqueda in a tail end of a throwing motion, from which it
reasonably inferred that Mosqueda threw the glass that struck Pena. Moreover, it was the trial court
that not only heard the testimony but saw Swiatek demonstrate with his arm the motion he observed
Mosqueda make on February 2, 2020. We do not have the benefit of seeing Swiatek’s
demonstration of Mosqueda’s arm motion, but the trial court did, describing it “as if throwing a
ball and following through with the motion.”
¶ 28 We find that evidence sufficiently supports the trial court’s conclusion. The trial court
credited Swiatek’s testimony about his observation of Mosqueda, took into consideration the
timeframe, and ultimately inferred that Mosqueda was the one that threw the glass. When Swiatek
saw the glass fly by him and strike Pena, he instantaneously looked back to see Mosqueda at the
end of throwing motion. Additionally, the only other person near Mosqueda was an unidentified
female and Swiatek did not observe any movement from her. Lastly, the evidence also showed
that Mosqueda and Pena exchanged words before Pena was hit in the head by a glass.
¶ 29 Next, Mosqueda asserts, and the State concedes, that five of the seven convictions of
aggravated battery violate the one-act, one crime rule. We agree. The issue was not raised before
the trial court or in any post-trial motions, but we may review it under the second prong of the
plain error doctrine as a violation that affects the integrity of the judicial process. See People v.
Nunez, 236 Ill. 2d 488, 493 (2010).
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¶ 30 Under the one-act, one crime rule, a defendant may not be convicted of multiple offenses
that are based upon precisely the same single physical act. People v. Johnson, 237 Ill. 2d 81, 97
(2010). When the rule is violated, the conviction on the less serious offense should be vacated.
People v. Coats, 2018 IL 121926. ¶ 33. To determine which offense is less serious, we consider
the possible punishment and culpable mental state of each offense. Id. The application of the one-
act, one crime rule is a question of law, and we will review it de novo. Johnson, 237 Ill. 2d at 97.
¶ 31 Mosqueda was charged with three counts of Class 3 aggravated battery (720 ILCS 5/12-
3.05 (West 2020)), for striking Pena in the head with a glass. Count 1 was for causing bodily harm
with a deadly weapon, Count 2 was for causing great bodily harm, and Count 3 was for causing
permanent disfigurement. Mosqueda was also charged with four counts of Class 3 aggravated
battery (720 ILCS 5/12-3.05 (West 2020)) for causing glass to strike Irizarry in the eye. Count 4
was for causing bodily harm with a deadly weapon, Count 5 was for causing great bodily harm,
Count 6 was for causing permanent disability, and Count 7 was for causing permanent
disfigurement.
¶ 32 Of the seven counts, Count 3 is the most serious conviction related to Pena and Count 6 is
the most serious conviction related to Irizarry because of the permanency and effect of the injury
on each victim. Accordingly, Mosqueda’s convictions for Counts 1, 2, 4, 5, and 7 are vacated.
¶ 33 III. CONCLUSION
¶ 34 For the foregoing reasons, Mosqueda’s convictions on Counts 3 and 6 are affirmed.
Mosqueda’s convictions on counts 1, 2, 4, 5, and 7 are vacated.
¶ 35 Affirmed in part; vacated in part.
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