delivered the opinion of the court:
Respondent, Keith C., was adjudicated delinquent based on a finding that he had committed the offenses of armed robbery (720 ILCS 5/18 — 2 (West 2004)) and aggravated battery (720 ILCS 5/12 — 4(a), (b)(1), (b)(8) (West 2004)). Respondent was adjudged a ward of the court and sentenced to five years’ probation. On appeal, respondent contends that (1) the identification evidence was insufficient, (2) the trial court erred when it refused to permit expert eyewitness identification testimony, (3) his adjudication for aggravated battery should be reversed because the victim’s injuries were not “practically certain” to result from throwing a brick, (4) improper hearsay was admitted, (5) the State made factual misrepresentations in its closing argument, and (6) the compulsory extraction of his saliva and perpеtual storing of his DNA profile violate his right to be free from unreasonable searches and seizures.
I. BACKGROUND
The State filed a petition for adjudication of wardship alleging that respondent committed robbery, aggravated battery, and criminal damage to property. He was tried in separate, simultaneous hearings with his two co-respondents, Aaron J. and Tony B.
Guadalupe Leon testified through an interpreter that on September 5, 2004, she left a birthday party in Berwyn at about 9 p.m. She thought it took 45 minutes to drive to her home, located at 6635 South California in Chicago. She drove into the well-lit alley behind her house and saw four young men enter the alley, two on a bicycle and two men walking next to the bicycle. Leon identified respondent and his two co-respondents in court as three of the boys.
As she drove past the boys, one of them kicked her bumper, but she was not afraid because she thought they were playing. She “barely saw” the face of the boy who kicked her car, but she recognized the boy riding the bicycle as co-respondent Tony B. She proceeded to open her garage with a remote control and pulled in. She let her husband out since he had to go to the restroom. When she pulled the car out of the garage to straighten it, she saw the boys leaning against her neighbor’s garage, which adjoined hers, “all in the light.” She testified that there was “plenty of light” in the alley outside the garage, and the inside of the garage was illuminated when she opened the garage door.
She was looking behind her, in the process of parking, when she heard a noise by the door. Someone opened her car door, and one of the boys grabbed her purse, with her cell phone clipped to the strap, from inside the car. He ran and dropped the purse in the middle of the garage. She attempted to get out of the car to retrieve her purse, but one of the boys went and picked it up. At that moment, a brick hit the windshield, breaking the glass, and “whatever emanated from that brick” hit her in the head. Everything became blurry, and she began bleeding from her ear. She saw the offenders from behind as they ran away. She did not see who threw the brick.
Leon braced herself against the walls of the garage as she went into the house and called her son, Ernesto. She went back to the car, where a man, who had called an ambulance, was helping her husband. She lay down in the car because she was unable to stand. By the time she was in the ambulance, she had her purse back, but the cell phone was no longer clipped to the strap.
Leon’s son, Ernesto, a police officer, testified that he was on duty at about 9:30 p.m. when his mother called his cell phone in a “nervous panic.” He hung up with her, called 911, and drove to his parents’ house with his lights and sirens activated. He arrived in less than 15 minutes and found the garage door open and the light in the garage on. His mother’s car was crashed into the neighbor’s fence. The windshield was broken and there was an indentation where the roof connеcts to the front windshield. He saw two halves of a brick inside the garage. His mother, “kind of passed out” in the passenger seat, had blood coming out of her right ear. Leon called the police department and requested a paramedic and police.
Ernesto attempted to talk to his mother to keep her conscious while they waited for the ambulance. After the ambulance arrived, he heard children at the front of the building calling out to someone in the building. He went to the front of the building and saw a boy and a girl. The girl was holding a black purse, which Leon determined was his mother’s. His mother’s cell phone was missing from the purse and he did not find it in her car. He went with his mother to the hospital, where she received four staples above her right еar.
Detective Kampenga of the Chicago police department testified that on September 15, 2004, he showed Leon an array of 18 photos. He did not tell her that she had to pick someone out, nor did he tell her that there was a suspect in the array. She did not identify anyone from this array. Neither respondent nor his co-respondents were pictured in the array.
Kampenga testified that Ernesto Leon provided him with the records for the stolen cellular phone to determine whether any calls were made with it after it was stolen. Kampenga investigated two phone numbers that were dialed from Leon’s stolen phone. He then spoke to respondent and his mother. Based on this information, he searched the Chicago police department’s CLEAR database for Aaron J. and obtained a photo of him, which he included in a second photo array. On September 28, 2004, Kampenga showed Leon the array of five photos. He did not tell her there was a suspect in the array, nor did he tell her she needed to pick someone out. Leon identified corespondent Aaron J. as one of the perpetrators.
Kampenga then went to Aaron J.’s home and spoke to Anthony B., the father of Keith’s two co-respondents, Tony and Aaron. Anthony B. gave Kampenga a cellular phone, which Leon later identified as hers. Tony and Aaron arrived home soon thereafter with respondent. Kampenga brought the three boys to the police statiоn and conducted a six-person lineup composed of Keith, Tony, and Aaron, and three additional people. Leon identified respondent and co-respondents.
Kampenga interviewed Keith, who stated that he was with his friends Aaron and Tony when he found the cell phone in the middle of the alley on the night of September 5, 2004. He could not remember what time this occurred, but it was dark out.
At the close of the State’s case, respondent moved to allow testimony from Dr. Gerald Loftus, a psychologist. Respondent argued that Loftus would have explained the “transference effect,” i.e., how someone could mistakenly remember a person from one time and place when the sighting was in a different context. He also would havе described how an officer can unconsciously influence a lineup. The trial court noted that the proposed expert had not spoken to Leon or the police detectives involved. The court questioned the relevance and helpfulness of Loftus’s proposed testimony because, “I don’t know, as I’m sitting here right now, whether or not the police might have done something suggestive that they, maybe unconsciously, didn’t know.” It also noted that the proposed testimony would be a “scholarly recitation about something that has everyday impacts” and found that it was well aware of general issues as they relate to eyewitness identification. Therefore, it barred the testimony.
Respondent then called Chicago police officer Shawn Monroe, who mentored respondent. Monroe testified that after respondent’s arrest, he talked to someone from the neighborhood, who said that a man named Donte had done additional robberies and burglaries. He informed a police detective and asked him to do a new lineup, but the detective refused “because it would kind of mess the case up.” Monroe testified that he did not file a report against the detective for official misconduct, nor did he create any supplemental police reports or general progress reports based on this information.
Respondent’s mother testified that on September 5, 2004, she and respondent arrived home from her parents’ house at 9:45 or 10 р.m. Respondent went to his room for a second and then went outside. She thought respondent was on the porch with co-respondents for a few minutes, but she was not sure. Before she went to bed, at about 10 p.m., she saw respondent on her neighbor’s porch. She fell asleep but heard him come in and go to his room.
Respondent’s neighbor, Lorraine Stokes, testified that on September 5, 2004, she was at home from 7:30 to 10:30 p.m. Tony and Aaron were on her porch from 7:30 to 9 p.m. She testified that at 9, they moved to a neighbor’s porch, but admitted that she did not see them leave. Respondent arrived later; she saw him at 10 p.m. but did not see him arrive. Tony and Aaron’s mother called at 10:30, but when she looked out the window, the boys were gone.
Stokes testified that the three bоys did not have a “reputation” in the community. They were close friends who played together, often at Marquette Park, which is at 67th and California. When they walked to Marquette Park to play basketball, they would walk south on Fairfield from the 65th Street block to 66th and Fairfield. She did not see their route past her block.
Finally, respondent testified on his own behalf. He stated that on September 5, 2004, he left the home of his grandmother, who lives two to five minutes from him, at about 9:30 p.m. When he arrived home, he went to a friend’s house on Fairfield, about seven houses from his house. Co-respondents were already there. He stayed on the porch of that house for 15 or 20 minutes and left with co-respondents, at about 10 or 10:15, and went to the store on 67th and California, which was two blocks from the friend’s house. At 10:15, as they walked through the alley between California and Fairfield, he found a cell phone. He picked it up and called his own cell phone to test it, and then gave it to Aaron. When he was walking through the alley, he did not see an ambulance or police car. He denied any involvement in a robbery.
The trial court found respondent guilty of aggravated battery and robbery. It sentenced respondent to serve the minimum disposition, 5 years’ probation, and ordered him to complete 20 hours of community service. This appeal followed.
II. ANALYSIS
A. Sufficiency of the Evidence
Defendant presents two challenges to the sufficiency of the evidence: (1) the sufficiency of the identification and (2) proof that he “intentionally or knowingly” committed aggravated battery. “It is the jury’s function to determine the accused’s guilt or innocence, and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant’s guilt.” People v. Frieberg,
1. Identification evidence
The prosecution has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime. People v. Slim,
Circumstances to be considered in evaluating an identification include the following: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness’s degree of attention; (3) the accuracy of the witness’s prior description of the criminal; (4) the level of certainty demonstrated by the witness at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. Slim,
Respondent contends that the first and second Slim factors weigh in his favor because Guadalupe Leon had no opportunity to view the criminals “at the time of the crime.” While she did not see which particular boys opened the car door, snatched her purse, or threw the brick, she did have two opportunities to view them just before the robbery occurred. First, she identified respondent and his two co-respondents as the boys who were in the alley when she first entered it. Second, just before the robbery, when she pulled the car out of the garage to straighten it, she saw the same boys leaning against her neighbor’s adjoining garage, “all in the light.” Although it was dark out when the incident occurred, Guadalupe Leon testified that the alley had “plenty of light,” and the victim’s son testified that the garage light was still on when he arrived. See People v. Barnes,
While respondent makes much of Guadalupe’s lack of fear when the boy kicked her bumper, it is significant that she was in close proximity to the boys when she first saw them. In addition, even if she only thought the boys were playing, having one’s bumper kicked would draw one’s attention to the person doing the kicking.
As for the fourth factor, Guadalupe identified respondent in the lineup and at trial. When she was presented with the first photo array, which did not contain pictures of respondent or his co-respondents, Guadalupe did not pick anyone out. However, respondent contends that 23 days, the period of time between the robbery and the lineup, was “more than sufficient to degrade the reliability of her memory.” We disagree. Where two-year lapses of time bеtween the crime and the identification have been upheld (Slim,
No evidence was presented as to the witness’s prior description of the criminals, the third Slim factor, except that they were four boys. While respondent cites United States v. Crozier,
Respondent also argues that the identification evidence was unreliable because Guadalupe Leon was confused as to events that occurred before she was hit on the head. He cites her testimony that she and the boys entered the alley at the same time and that when she encountered them, they were going north and she was going south. To the extent that this testimony was inconsistent, we note that it is for the trier of fact to resolve conflicts or inconsistenciеs in the evidence. Tenney,
Finally, respondent claims that the identification procedures raised the possibility that Guadаlupe Leon mistakenly identified him by association rather than recognition. He first contends that by placing corespondent Aaron in both the photo array and the lineup, the police demonstrated their suspicion of Aaron. We have held, however, that lineups “from which the defendant is identified as the perpetrator are not rendered inadequate merely because the defendant is the only person in the lineup whose photograph was previously shown to the person viewing the lineup.” People v. Curtis,
Although respondent argues that his testimony was plausible and partially corroborated, we reiterate that it is the function of the trier of fact to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Tenney,
2. Proof of mental state for aggravated battery
Respondent next argues that his adjudication for aggravated battery should be reversed because the State failed to prove beyond a reasonable doubt that he “intentionally or knowingly” caused great bodily harm or used a deadly weapon to cause bodily harm.
Section 12 — 4(a) of the Criminal Code of 1961 provides that a “person who, in committing a battery, intentionally or knowingly causes great bodily harm, or permanent disability or disfigurement commits aggravated battery.” 720 ILCS 5/12 — 4(a) (West 2004). A “person *** acts knowingly or with knowledge of *** [t]he result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.” 720 ILCS 5/4 — 5(b) (West 2004).
By its very nature, “knowledge” is ordinarily proved by circumstantial evidence, rather than by direct proof. People v. Nash,
Respondent contends that whoever threw the brick could not have been “practically certain” that his conduct would cause bodily harm because Leon testified that when the brick was thrown, “[i]t first hit the car, breaking the glass. And I think that the, whatever emanated from that brick hit me on the head.” The State responds that it “strains credulity” that a person could throw a rock at an occupied car without being “practically certain” that the occupant would suffer great bodily harm.
In People v. Hauschild,
Similarly, we find that it was “practically certain” that throwing a brick at the windshield of an occupied car would result in great bodily harm to the driver. Furthermore, when the brick was thrown, Leon’s car door was open, leaving her even more unprotected from, and likely to be injured by, a thrown brick. While the record does not contain a description of the brick’s size and weight, it was thrown with sufficient force to cause it to break when it hit the windshield.
B. Expert Witness
Respondent next argues that the trial court should have allowed Dr. Gerald Loftus to explain identification transference, eyewitnesses’ propensity to select a lineup participant unless admonished, and how an officer can influence a lineup. The proposed witness did not generate a report; the hearing transcripts refer to a motion, an offer of proof, and a curriculum vitae, which were apparently filed by Tony and joined by respondent. However, none of these documents is in the record on appeal.
Generally, an expert will be permitted to testify if his or her experience and qualifications afford him or her knowledge that is not common to laypersons and where such testimony will aid the trier of fact in reaching its conclusion. People v. Enis,
In Enis, our supreme court ruled that the trial court properly barred expert testimony regarding the reliability of eyewitness testimony. The expert would have testified that the relationship between witness confidence and accuracy is insignificant; the higher the stress level, the less accurate the memory; an identification is usually worse if a weapon is present; and jurors give too much weight to time estimates. Enis,
“Trial courts should carefully scrutinize the proffered testimony to determine its relevance — that is, whether there is a logical connection between the testimony and the facts of the case.” Tisdel,
Respondent also claims that the expert could have testified about how police can affect the lineup. At trial, respondent argued that the expert could tell the court what facts it should be listening to or considering from the testimony, for example, the lighting or whether violence was involved. There was, however, little testimony as to how the lineup was conducted. Indeed, Kampenga, the only officer to testify, was not even with Leon when she identified respondent and his corespondents in the lineup.
Finally, according to respondent, the expert could have described how an eyewitness tends to pick someone in a lineup and how police admonishments reduce that propensity. While evidence was presented that Kampenga admonished Leon that she did not have to pick anyone out of the photo arrays, there was no testimony as to whether the admonishment was repeated for the lineup. Although respondent argues that “[t]his discrepancy could have communicated” to Leon that she lacked permission to decline an identification, we refuse to speculate, in the absence of any evidence, whether Leon was admonished at the lineup. Therefore, the proposed testimony would be based on speculation instead оf “the facts of [the] case.” Tisdel,
Defendant also contends that the trial court abused its discretion because it used improper legal criteria by “demand[ing] first-hand knowledge of facts from the defense expert,” evaluating the relevance of the evidence by weighing the State’s evidence, and relying on inadmissible hearsay. We disagree. In commenting on Dr. Loftus’s failure to talk to the witnesses, the trial court noted that there was no evidence that “the police might have done something suggestive that they, maybe unconsciously, didn’t know.” We find that the trial court did not err when it “carefully scrutinize[d]” the proposed testimony and specifically found that it was irrelevant and would not assist the court. Tisdel,
In a motion to cite additional authority, respondеnt relies on People v. Allen,
Allen reinforces our conclusion as to the admissibility of Dr. Loftus’s proposed testimony. The trial court heard respondent’s motion before trial and, after extensive arguments, declined to make a decision until after hearing the State’s witnesses. When the State concluded its case, the trial court asked the parties to address the issue again. After having two hearings on this issue and reading the curriculum vitae, motion, and appropriate case law, the trial court found the testimony to be irrelevant. Therefore, we find that, unlike the trial court in Allen, the trial court in this case gave the proposed testimony serious consideration before it determined that it was not relevant.
Furthermore, certain parts of the expert’s report in Allen were relevant and referred to commonly accepted misconceptions. For example, the proposed expert’s report in Allen presented data concerning weapon focus, stress, and the relationship between witness confidence and witness accuracy, issues that the State stressed in closing argument. Allen,
Thе trial court did not abuse its discretion in refusing to admit the testimony.
C. Hearsay
Respondent contends that the trial court erred when it allowed Kampenga, over respondent’s objection, to testify that when he showed Leon the cellular phone that co-respondents’ father gave him, she identified it as hers.
Hearsay evidence is testimony regarding an out-of-court statement offered to prove the truth of the matter asserted. People v. Sullivan,
As a preliminary matter, the State contends that respondent waived this argument because he did not object at trial. Respondent responds that an objection would be futile because the trial court overruled co-respondent’s objection to the question on hearsay grounds. Regardless of whether respondent waived his claim, however, we find that reversible error did not occur because Leon testified at trial and was available for cross-examination. “[W]here the declarant is available in court or there is an opportunity to ascertain the veracity of the testimony by cross-examination, there is no hearsay problem.” People v. Hodor,
Respondent relies on People v. Lawler,
D. The State’s Closing Argument
Respondent argues that the State made two factual misrepresentations in its closing argument. The State’s evidence shows that the robbery occurred at approximately 9:45 p.m. Although Keith testified that he was in the alley at 10:15 p.m., the State argued in closing that he “put himself in the alley when the crime occurred.” In addition, the State argued that to go from Lorraine Stokes’s house to Marquette Park, the boys always walked down Fairfield instead of walking through an alley at California. Stokes testified, however, that she did not know their route past her block.
Respondent waived this issue because he failed to object to either statement. In re W.C.,
Waiver notwithstanding, we find that the trial court did not err. It is well settled that prosecutors enjoy wide latitude in closing arguments, and the scope of permissible arguments rests within the sound discretion of the trial court. People v. Walker,
Respondent argues, however, that the record rebuts the presumption because the court “lacked a sufficient grasp of the evidence” when it overruled Tony B.’s objections to two additional statements that the State made in closing. We do not find the trial court’s overruling of Tony B.’s objections to be evidence of its “shaky grasp” of the evidence; to the contrary, in overruling one of the objections, the trial court specifically noted, “The evidence has been in. I have heard the evidence. I know it.”
We conclude that respondent waived his argument regarding the State’s closing. Even if he had not waived the argument, the record does not affirmatively rebut the presumption that the trial judge only considered relevant evidence.
E. DNA Testing
Lastly, respondent contends that the extraction of his saliva for DNA testing pursuant to section 5 — 4—3 of the Unified Code of Corrections (730 ILCS 5/5 — 4—3 (West 2004)) violates his right to be free from unreasonable searches and seizures. Respondent acknowledges that our supreme court found the statute constitutional in People v. Garvin,
We review the constitutionality of a statute de novo. Garvin,
The Second District addressed this issue in In re Robert K,
III. CONCLUSION
For the foregoing reasons, we affirm the decision of the trial court.
Affirmed.
NEVILLE and CAMPBELL, JJ, concur.