{ "id": 1544466, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FELICIA THARPE-WILLIAMS, Defendant-Appellant", "name_abbreviation": "People v. Tharpe-Williams", "decision_date": "1997-02-19", "docket_number": "No. 2\u201496\u20140010", "first_page": "605", "last_page": "614", "citations": [ { "type": "official", "cite": "286 Ill. App. 3d 605" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "272 Ill. App. 3d 311", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 251680 ], "year": 1995, "pin_cites": [ { "page": "317" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/272/0311-01" ] }, { "cite": "221 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5794498 ], "year": 1991, "pin_cites": [ { "page": "580" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0578-01" ] }, { "cite": "265 Ill. App. 3d 3", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872598 ], "year": 1994, "pin_cites": [ { "page": "5" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0003-01" ] }, { "cite": "146 Ill. 2d 363", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596932 ], "year": 1992, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0363-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "261" }, { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "424 Pa. Super. 531", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 926710 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "537", "parenthetical": "best evidence rule barred police officer from testifying about the contents of a videotape; police officer did not witness the alleged act of retail theft that was supposedly recorded on the videotape" }, { "page": "358-59", "parenthetical": "best evidence rule barred police officer from testifying about the contents of a videotape; police officer did not witness the alleged act of retail theft that was supposedly recorded on the videotape" } ], "opinion_index": 0, "case_paths": [ "/pa-super/424/0531-01" ] }, { "cite": "226 P.2d 672", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1951, "pin_cites": [ { "page": "674" } ], "opinion_index": 0 }, { "cite": "102 Cal. App. 2d 104", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2287466 ], "year": 1951, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/102/0104-01" ] }, { "cite": "704 P.2d 499", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10411615 ], "year": 1985, "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/p2d/704/0499-01" ] }, { "cite": "264 Ill. 124", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5775328 ], "year": 1914, "pin_cites": [ { "page": "137-38" } ], "opinion_index": 0, "case_paths": [ "/ill/264/0124-01" ] }, { "cite": "174 Ill. App. 3d 38", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514831 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "42" }, { "page": "42" }, { "page": "42" }, { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/174/0038-01" ] }, { "cite": "109 Ill. 2d 187", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3125597 ], "year": 1985, "pin_cites": [ { "page": "193", "parenthetical": "records produced by computerized telephone-call tracing equipment without manual or human intervention are not hearsay evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0187-01" ] }, { "cite": "103 Ill. 2d 133", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152504 ], "year": 1984, "pin_cites": [ { "page": "148", "parenthetical": "\"The fundamental purpose of the hearsay rule is to test the value of assertions by exposing the source of the assertion to cross-examination by the party against whom it is offered\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/103/0133-01" ] }, { "cite": "262 Ill. App. 3d 302", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2852086 ], "year": 1994, "pin_cites": [ { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0302-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "186", "parenthetical": "an issue is waived if it is not raised both in a trial objection and in a written post-trial motion" }, { "page": "186" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] } ], "analysis": { "cardinality": 811, "char_count": 19897, "ocr_confidence": 0.755, "pagerank": { "raw": 1.7816140246608555e-07, "percentile": 0.7135724901335947 }, "sha256": "ecc19a73760ef6b4cb589a72992e228751446843cc02c7d2af20b80d3959d472", "simhash": "1:8ee3e12d3a6ae876", "word_count": 3279 }, "last_updated": "2023-07-14T20:24:46.991294+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FELICIA THARPE-WILLIAMS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BOWMAN\ndelivered the opinion of the court:\nDefendant, Felicia Tharpe-Williams, was convicted following a bench trial of retail theft (720 ILCS 5/16A\u20143(a) (West 1994)). The trial court sentenced her to one year of court supervision and fined her $100 plus court costs. Defendant now appeals her conviction. We affirm.\nThe following is a summary of the trial evidence relevant to the issues on appeal. Wal-Mart maintains a security office in its store in Darien, Illinois. The office contains numerous video monitors which are connected to video cameras located throughout the store. At the same time that the images are relayed from the video cameras and sent (and displayed) on the video monitors, the images are also recorded on a videotape.\nEric Berg, a loss prevention agent for Wal-Mart, testified that on June 16,1995, he was observing the video monitors in the security office. For the previous two weeks, he had been investigating Sandra Knight, who worked behind the courtesy desk. At approximately 3 p.m. on June 16, Berg saw defendant on the video monitor approach Knight and place a large number of items on the courtesy desk. Defendant was also employed by Wal-Mart. Knight began to scan some of the items. Defendant then walked out of the picture, and Knight began to place some items that she had not scanned in a Wal-Mart bag.\nBerg further testified that defendant then reentered the picture with a McDonald\u2019s bag (McDonald\u2019s operated a stand inside the Wal-Mart) and placed the McDonald\u2019s bag in the seat of her cart. Defendant then took two unscanned items, a bottle of cologne and a can of deodorant, which were on the courtesy desk, and placed them in the McDonald\u2019s bag. The bottle of cologne was a sample bottle for the customers\u2019 use; it contained a label from the vendor stating that the bottle was a tester and not for resale. No sales receipt for either item was found in the McDonald\u2019s bag. Berg then saw Knight placing additional unscanned items into Wal-Mart bags. Defendant was present and facing Knight when Knight failed to scan some of the items and placed them in the Wal-Mart bags. Although not entirely clear from the record, defendant apparently did write a check (in the approximate amount of $60) for some of the merchandise.\nAt this point, Berg notified his supervisor, Mick Pinneke, about what was occurring. Pinneke directed Berg to do a receipt check to make sure that all the items were paid for. Defendant was then detained, and the receipt check revealed that there were items in the bags that were not accounted for on the receipt. Berg then prepared a receipt of the items defendant had not paid for; the total amount of the unpaid items was $18.67.\nAccording to Berg, Wal-Mart has an unwritten policy, which is disclosed to employees during their orientation, that employees should make purchases at the registers and not at the courtesy desk. There are no registers between the courtesy desk and the exit doors. Also, Wal-Mart did not have a policy of giving its employees tester items. Berg did not know if defendant and Knight talked to each other during this incident because he could only see the back of defendant\u2019s head.\nMick Pinneke, a district loss supervisor for Wal-Mart, testified that, while watching the video monitor, he saw Knight place unscanned merchandise into a Wal-Mart bag. Defendant was facing Knight when this occurred. According to Pinneke, defendant was violent after she was detained by store security; she threw merchandise, pushed a shopping cart at Pinneke, and repeatedly called Knight\u2019s name.\nOfficer Joseph Brady of the Darien police department testified that he arrived at the store after defendant had been detained by store security. Officer Brady asked defendant how the unscanned items got into the McDonald\u2019s bag and the Wal-Mart bag. Defendant replied that she did not know. Officer Brady also testified that Knight told him that she did not scan certain items for defendant.\nDefendant did not present any evidence in her case in chief. The trial court subsequently found her guilty of the offense of retail theft and sentenced her to one year of court supervision and fined her $100 plus court costs.\nDefendant has three contentions on appeal: (1) the trial court erred in failing to exclude the testimony of Berg and Pinneke; (2) she was not proved guilty beyond a reasonable doubt; and (3) the trial court erred in finding her guilty on a theory of accountability.\nDefendant\u2019s first contention on appeal is that the trial court erred in failing to exclude the testimony of Berg and Pinneke. Defendant posits essentially two arguments in support of this contention: (1) Berg\u2019s and Pinneke\u2019s testimony was inadmissible hearsay; and (2) Berg\u2019s and Pinneke\u2019s testimony violated the best evidence rule.\nWe first address defendant\u2019s argument that Berg\u2019s and Pinneke\u2019s testimony constituted inadmissible hearsay testimony. Berg and Pinneke witnessed the incident at the courtesy desk by watching a contemporaneous telecast of it on the video monitor in the security office. According to defendant, Berg and Pinneke did not have any personal knowledge of what occurred at the courtesy desk; rather, they repeated what the video camera, a third party, had to say. As such, defendant reasons, their testimony constitutes inadmissible hearsay.\nInitially, we note that defendant has waived this issue for purposes of appellate review. Although the issue was raised in her post-trial motion, defendant failed to lodge a specific contemporaneous objection to either Berg\u2019s or Pinneke\u2019s testimony. Accordingly, the issue is waived. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (an issue is waived if it is not raised both in a trial objection and in a written post-trial motion).\nWaiver aside, we find defendant\u2019s argument to be meritless, albeit novel. Hearsay evidence is in-court testimony of an out-of-court statement, which is offered to establish the truth of the matter contained in the statement, and the value of which rests on the credibility of someone other than the witness. In re E.M., 262 Ill. App. 3d 302, 309 (1994). Here, defendant assumes that the video camera that telecast the incident was the source of an out-of-court statement. We disagree.\nDefendant does not cite, and we have not located, any Illinois case law that addresses this issue. Nevertheless, it is axiomatic that an out-of-court statement must be made by a person or writing, not by an object such as a video camera. Hearsay evidence is inadmissible because it relies upon the credibility of someone other than the witness. In other words, hearsay evidence is considered untrustworthy because the declarant is not subject to cross-examination. See People v. Holman, 103 Ill. 2d 133, 148 (1984) (\"The fundamental purpose of the hearsay rule is to test the value of assertions by exposing the source of the assertion to cross-examination by the party against whom it is offered\u201d); see also M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 801.1, at 636-37 (6th ed. 1994). In the context of hearsay evidence, however, credibility and trustworthiness are characteristics peculiar to people or documents written or generated by people. Objects such as a video camera neither have nor lack credibility or trustworthiness. If properly operated, there is no reason to suspect that images received from a video camera and displayed on a video monitor are unreliable. As such, the underlying basis for excluding hearsay evidence does not apply to \"out-of-court statements\u201d made by a video camera. Cf. People v. Holowko, 109 Ill. 2d 187, 193 (1985) (records produced by computerized telephone-call tracing equipment without manual or human intervention are not hearsay evidence). Hence, Berg\u2019s and Pinneke\u2019s testimony was not inadmissible hearsay.\nOf course, a witness\u2019 testimony regarding what he observed while viewing a contemporaneous, live telecast of an incident requires foundational proof that the video system was functioning properly. Defendant, however, does not, and did not before the trial court, maintain that the video system in this case was functioning improperly on the day of the incident. Accordingly, we need not consider whether a proper foundation was laid for Berg\u2019s and Pinneke\u2019s testimony regarding what they observed on the video monitor.\nWe next address defendant\u2019s argument that Berg\u2019s and Pinneke\u2019s testimony violated the best evidence rule because the videotape of the incident was not submitted into evidence. As before, defendant has waived this argument by failing to lodge a contemporaneous objection to the testimony and by failing to raise it in her post-trial motion. See Enoch, 122 Ill. 2d at 186.\nEven if the issue were not waived, we are convinced that the best evidence rule has no application to the circumstances involved here. The best evidence rule states a preference for the production of the original of documentary evidence when the contents of the documentary evidence are sought to be proved. Jones v. Consolidation Coal Co., 174 Ill. App. 3d 38, 42 (1988). There is no general rule that a party must produce the best evidence that the nature of the case permits. Jones, 174 Ill. App. 3d at 42. The best evidence rule does not apply where a party seeks to prove a fact that has an existence independent of the documentary evidence, even though the fact might have been reduced to, or is evidenced by, the documentary evidence. Jones, 174 Ill. App. 3d at 42. For instance, an individual who hears a defendant\u2019s confession may testify to it even though the confession may have been simultaneously transcribed by a court reporter. People v. Spencer, 264 Ill. 124, 137-38 (1914).\nIn this case, Berg\u2019s and Pinneke\u2019s testimony sought to prove a fact that was independent of the videotape of the incident, i.e., that they observed defendant place unpaid items in her bag as well as accept a bag with unpaid items. In other words, they sought to testify not to the contents of the videotape, but to an incident they observed on the video monitor. Just as the individual who hears a confession may testify that the defendant confessed, even though the confession was simultaneously transcribed by a court reporter, so too could Berg and Pinneke testify to what they saw defendant do, even though that incident was simultaneously recorded on videotape. Although the videotape of the incident \" 'might be more reliable and satisfactory evidence under ordinary circumstances than testimony from memory, the latter is not rendered incompetent by the fact of the existence of the former.\u2019 \u201d Anderson v. State, 704 P.2d 499, 502 (Okla. Crim. App. 1985), quoting People v. Kulwin, 102 Cal. App. 2d 104, 109, 226 P.2d 672, 674 (1951); see Jones, 174 Ill. App. 3d at 42.\nMoreover, the fact that Berg and Pinneke only observed the incident because it was telecast by a video camera is irrelevant. Berg and Pinneke observed the incident on the video monitor at the same time it was occurring. As such, they testified to facts based on their personal observations. The situation is no different than if Berg and Pinneke had been 100 yards away from defendant at the time of the incident but they needed a telescope to observe what was happening. As long as the telescope was functioning properly, we see no reason why they would not be able to testify as to what they observed. Similarly, as long as the video system was functioning properly, Berg and Pinneke could testify as to what they observed on the video monitor. Because defendant never contested below that the video system was functioning improperly, Berg\u2019s and Pinneke\u2019s testimony was properly admitted.\nOf course, if Berg and Pinneke had attempted to testify as to the contents of the videotape, then the best evidence rule would have required that the videotape be authenticated and admitted into evidence. See M. Graham, Cleary & Graham\u2019s Handbook of Illinois Evidence \u00a7 1002.1, at 836-37 (6th ed. 1994). However, they did not attempt to testify as to the contents of the videotape. Thus, the best evidence rule does not apply. See Pennsylvania v. Lewis, 424 Pa. Super. 531, 537, 623 A.2d 355, 358-59 (1993) (best evidence rule barred police officer from testifying about the contents of a videotape; police officer did not witness the alleged act of retail theft that was supposedly recorded on the videotape).\nDefendant\u2019s second contention is that she was not proved guilty of the offense of retail theft beyond a reasonable doubt. In support of this contention, defendant emphasizes that she was not present during part of the incident, that Berg and Pinneke did not see her talking with Knight, and that Berg\u2019s testimony was not substantially corroborated by Pinneke\u2019s.\nWhen faced with a challenge to the sufficiency of the evidence, the reviewing court applies the standard set forth in People v. Collins, 106 Ill. 2d 237, 261 (1985). Under Collins, the relevant inquiry 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. Collins, 106 Ill. 2d at 261. A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. People v. Campbell, 146 Ill. 2d 363, 375 (1992). It is the province of the trier of fact to draw reasonable inferences from the evidence, and we may not overturn a finding of guilt unless the evidence is so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of the defendant\u2019s guilt. People v. Cunningham, 265 Ill. App. 3d 3, 5 (1994).\nDefendant was charged with committing the offense of retail theft in violation of section 16A\u20143(a) of the Criminal Code of 1961 (720 ILCS 5/16A\u20143(a) (West 1994)). To establish a violation of section 16A\u20143(a), the State must prove: (1) that the defendant knowingly took possession of, carried away, transferred, or caused to be carried away or transferred, any merchandise; (2) that the merchandise was displayed, held, stored, or offered for sale in a retail mercantile establishment; and (3) that the defendant intended to retain such merchandise or intended to deprive the merchant permanently of the possession, use, or benefit of such merchandise, without paying the full retail value of such merchandise. 720 ILCS 5/16A\u20143(a) (West 1994); People v. Liner, 221 Ill. App. 3d 578, 580 (1991).\nViewing the evidence in the light most favorable to the State, we conclude that a rational trier of fact could have found defendant guilty of retail theft. Berg testified that, although it is company policy that employees purchase store items at the regular cash registers, defendant brought her items to the courtesy desk, the station nearest the exit. Defendant then placed two unrung items into a McDonald\u2019s bag. At least one of these items, the sample bottle of cologne, was store merchandise. Moreover, Berg and Pinneke both testified that defendant was facing Knight when Knight failed both to scan some merchandise and then place that merchandise in a Wal-Mart bag. Defendant then took the Wal-Mart bag and the McDonald\u2019s bag, but was detained before she could exit the store. A search of the bags revealed that defendant did not pay for several items in the Wal-Mart bag and that she did not have a receipt for the cologne and deodorant in the McDonald\u2019s bag. Based on this evidence, a rational trier of fact could infer that defendant knowingly took possession of Wal-Mart\u2019s merchandise and that she intended to retain the merchandise without paying the full value of it. Furthermore, and contrary to defendant\u2019s assertions, the presence of the stolen merchandise in court, either in person or through photographs, was not required to prove the retail theft. See People v. Mikolajewski, 272 Ill. App. 3d 311, 317 (1995). We therefore refuse to disturb defendant\u2019s conviction.\nDefendant\u2019s final contention is that the trial court erred in finding her guilty on a theory of accountability. We need not address this contention, however, in light of our foregoing analysis. Assuming, arguendo, that the trial court found defendant guilty on a theory of accountability for Knight\u2019s acts, the record is clear that the trial court also found defendant directly responsible for the offense of retail theft. As the preceding paragraph explains, the evidence was sufficient to sustain this finding of direct guilt. Because we may affirm defendant\u2019s conviction on the trial court\u2019s finding of direct guilt, we need not consider whether defendant was also guilty under a theory of accountability.\nFor the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.\nAffirmed.\nDOYLE, J., concurs.", "type": "majority", "author": "JUSTICE BOWMAN" }, { "text": "JUSTICE RATHJE,\nconcurring in part and dissenting in part:\nI agree with the majority view that the testimony of the videotape evidence was not inadmissible hearsay. However, I disagree with the conclusion that the defendant was found guilty of theft as a principal beyond a reasonable doubt.\nI observe, first, that there is no evidence of a confession by the defendant in this cause, nor is there any testimony by Sandra Knight, the other employee involved in this cause, implicating the defendant in any theft of merchandise from Wal-Mart. The evidence of the commission of the offense in this cause consists of the testimony of two other store employees as to what they saw on the videotape of the incident.\nAccording to the testimony of employees Berg and Pinneke, the defendant placed items to be purchased on the counter and then left the viewing area of the camera. While the defendant was gone, Knight placed unscanned items in a Wal-Mart bag. There was no evidence that the defendant was aware that these items were not scanned prior to their being placed in the bags. When the defendant returned to the viewing area, she had a McDonald\u2019s bag with her, and she placed items from the counter in the McDonald\u2019s bag. Again, there was no evidence that the defendant was aware that these items had not been scanned prior to placing them in the McDonald\u2019s bag. While the defendant was facing Knight, Knight placed more unscanned items into Wal-Mart bags, which the defendant took with her.\nCentral to the State\u2019s proof in this cause is the fact that the defendant was facing Knight with her back to the camera while Knight was placing unscanned merchandise into Wal-Mart bags. However, because there is no audio portion to the videotape, it is only speculation and conjecture as to what went on between the defendant and Knight while the unscanned items were placed into the Wal-Mart bags. The State\u2019s version requires us to assume that, at all times, the defendant\u2019s attention was fixed on what Knight was doing without actually proving that critical fact.\nWhile it is undisputed that unscanned items were found in the defendant\u2019s possession, there is no proof beyond a reasonable doubt that the defendant knowingly took possession of the items without paying the full retail value of them. 720 ILCS 5/16A\u20143(a) (West 1994). As the State\u2019s proof that the defendant was aware that the items in her possession were not scanned amounts to conjecture and speculation, I would conclude that the defendant was not found guilty of retail theft beyond a reasonable doubt.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE RATHJE," } ], "attorneys": [ "Cynthia R. Lyons, of Law Offices of Cynthia R. Lyons, of Naperville, for appellant.", "Joseph E. Birkett, State\u2019s Attorney, of Wheaton (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Bradley S. McMillan, of Heiple & McMillan, of Peoria, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FELICIA THARPE-WILLIAMS, Defendant-Appellant.\nSecond District\nNo. 2\u201496\u20140010\nOpinion filed February 19, 1997.\nRATHJE, J., concurring in part and dissenting in part.\nCynthia R. Lyons, of Law Offices of Cynthia R. Lyons, of Naperville, for appellant.\nJoseph E. Birkett, State\u2019s Attorney, of Wheaton (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Bradley S. McMillan, of Heiple & McMillan, of Peoria, for the People." }, "file_name": "0605-01", "first_page_order": 623, "last_page_order": 632 }