People v. Profit

• Decision Date: 05 March 2021
• Docket Number: 1-17-0744
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald PROFIT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 170744

187 N.E.3d 156

453 Ill.Dec. 182

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Donald PROFIT, Defendant-Appellant.

No. 1-17-0744

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed March 5, 2021

Modified upon denial of rehearing March 26, 2021

James E. Chadd, Douglas R. Hoff, Ian R. Jackson, (Sarah Free, law student), of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Brian K. Hodes, and Tristan M. Hinriksson, Assistant State's Attorneys, of counsel), for the People.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant Donald Profit was found guilty of attempted robbery and unlawful restraint but sentenced only on the charge of attempted robbery, for which he received four years in prison. On appeal, Mr. Profit argues (1) the evidence was insufficient to support the trial court's findings of guilt and (2) if his conviction is affirmed, he should not be required to register as a violent offender against youth. For the following reasons, we affirm the attempted robbery conviction, correct the mittimus, and find that Mr. Profit is not required to register as a violent offender against youth.

¶ 2 I. BACKGROUND

¶ 3 Mr. Profit was charged with aggravated attempted robbery and unlawful restraint on a theory of accountability based on an encounter that Mr. Profit and an unidentified man had with 15-year-old Marcus Williams on June 22, 2016.

¶ 4 Marcus testified at trial that at approximately 4:15 or 4:20 p.m. on June 22, 2016, he was speaking to his aunt on the phone while walking to her car, which was parked near 61st Street and Ellis Avenue. Marcus testified that he had just turned the corner when he noticed two men—Mr. Profit and an unidentified male—walking toward him for "maybe 10 seconds." As Marcus put his phone in his pocket, the man who was not Mr. Profit grabbed Marcus's shirt and asked, "[w]hat type of phone do you have? Give it here." Marcus pulled his phone out of his pocket, said it was an iPhone 6, and the man "smacked it" out of his hand. Marcus then picked up his phone and ran to his aunt's car, where he called his mother. When he arrived home, Marcus met with Chicago police officers and made a police report about what had happened.

¶ 5 Throughout the exchange, Marcus assumed Mr. Profit had a weapon because of the position of his hand and the fact that his hand was under his shirt, as if he was trying to cover something up. According to Marcus, when the other man grabbed him, Mr. Profit "stopped." He walked toward Marcus "just about a foot—a step or two," with his hand "still in his, like, upper shirt, like, trying to hide something," and "then he walked back off."

¶ 6 On July 16, 2016, Marcus went to the police station at 51st Street and Wentworth Avenue with his mother, Ranita Mitchell. There, Marcus met with Detective Purtell and agreed to view a photo array. Marcus identified Mr. Profit from the photo array as "[t]he one that had his hand in his pants, like, assuming he had a weapon." Marcus testified that he did not know Mr. Profit before June 22.

¶ 7 On cross-examination, Marcus agreed that it was the other man with Mr. Profit who "grabbed" him. Mr. Profit was standing off to the side, did not say anything to Marcus, and did not touch Marcus or try to take the phone from Marcus. Marcus agreed that after the other man "smacked" his phone out of his hand, Marcus was able to grab his phone and leave. Marcus thought there might have been a gun and that scared him, but he did not actually see a gun.

¶ 8 On redirect examination, Marcus demonstrated how Mr. Profit had been standing to make Marcus believe he had a gun. The court stated: "Indicating his jacket pulled up, in his right hand, his left hand in his waistband jacket hiding the top of his hand." While Mr. Profit was doing that, according to Marcus, the other person was talking to Mr. Profit with Marcus's shirt in his hand, but there was no testimony about what the other man said.

¶ 9 The trial court made its own examination of Marcus. Marcus testified that Mr. Profit and the other man were together when he encountered them, they approached him together, and they stood there together while the other man talked to Marcus and slapped the phone out of Marcus's hand. And when the two left, they left together, so they were together the whole time. Marcus repeated to the judge that the other man had asked what type of phone he had and said "give it here." Marcus again explained, "and that's when I took it out and I said, I got an iPhone 6 and that's when he smacked it out and I picked it up and ran to the car." Marcus confirmed to the judge that there was no struggle.

¶ 10 Two surveillance videos were introduced into evidence and are part of the record on appeal. We have reviewed both videos, although there is no indication in the record of the second video being presented to the judge during the trial. Marcus testified that the first video, which was recorded from across the street, truly and accurately depicts part of the encounter he had with the two men. The video shows that the entire interaction lasted only about six seconds. Marcus can be seen walking toward the right side of the screen. When he is almost to the edge of the screen, two men—the one that Marcus identified as Mr. Profit and the other unidentified man—can be seen walking toward Marcus. As Marcus passes the two men, the unidentified man stops and can be seen turning back toward Marcus. Marcus walks backward off the right side of the screen, and the unidentified man takes a couple of steps toward him but is still visible. While this is happening, the man Marcus identified as Mr. Profit keeps walking a couple of steps towards the left side of the screen. He then stops, turns around, and takes two steps toward the other man and Marcus. The two men then turn and continue walking toward the left side of the screen, and Marcus can no longer be seen.

¶ 11 According to the timestamps on the two videos, the second video was recorded approximately three minutes after the first video ended. Mr. Profit and the same unidentified man can be seen walking together back and forth near 60th Street and Ellis Avenue for approximately two minutes until they walk off of the screen together.

¶ 12 Two detectives from the Chicago Police Department and a sergeant with the University of Chicago Police Department testified about the investigation that led to the creation of the photo array from which Marcus identified Mr. Profit, the recovery of the surveillance video, and Marcus's identifications.

¶ 13 The State rested. The defense then moved for an acquittal, and the trial court denied the request. Mr. Profit declined to testify on his own behalf, and the defense rested.

¶ 14 In its findings, the court stated that Marcus Williams had an iPhone 6 as he was walking down the street, and "Mr. Profit and another person were out there looking for some sort of trouble." The court said that "it wasn't premediated to any great degree but they did encounter Marcus Williams. There was—they walked there together. They were stopping him together and blocking his path together." The court continued:

"[T]he other person with Mr. Profit did put his hands on [Marcus] and got a little bit physical, slapped the cell phone away. Mr. Profit was there with his hands in his waistband. The young man, Mr. Williams, was able to get the phone back and run away to the safety of his aunt and a police investigation was certainly thorough. They went to the point of getting available videos that—they were out there at the scene and making still photographs and following up with identification procedures by Marcus Williams and I found him to be a credible and compelling witness.

The conduct of Mr. Profit, although I do find that he was finding [sic ] in concert with the other person, whether it was a gun he was threatening with or not, there were no words that were expressed about that. No gun was shown. The court is unclear as to whether it was a gun that he was hiding or pretending that he had a gun and that's part of the indictment.

So accordingly, to give some benefit of the doubt as to Count 1, he's found guilty of the lesser included offense of attempt[ed] robbery, Class 3 offense; also found guilty of unlawful restraint, a Class 4 offense, both under the One Act One Crime doctrine merging into Count 1, attempt[ed] robbery, Class 3."

¶ 15 The trial court denied Mr. Profit's motion for a new trial and sentenced him to 4 1/2 years in prison. Upon hearing that Mr. Profit had been prescribed psychotropic medication, however, the trial court found that factor to be mitigating and granted Mr. Profit's motion to reconsider his sentence in part, reducing it by 6 months to four years in prison.

¶ 16 The mittimus incorrectly reflects that Mr. Profit was sentenced to four years in prison on the offense of unlawful restraint.

¶ 17 II. JURISDICTION

¶ 18 Mr. Profit's motion to reconsider his sentence was granted in part and denied in part on March 1, 2017, and he timely filed his notice of appeal that same day. We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill. Const. 1970, art. VI, § 6 ) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. Dec. 11, 2014), governing appeals from final judgments in criminal cases.

¶ 19 III. ANALYSIS

¶ 20 A. Sufficiency of the Evidence

¶ 21 Mr. Profit first argues that the trial court's findings of his guilt for both attempted robbery and unlawful restraint should be reversed because the evidence was insufficient to prove him accountable for the acts of the unidentified man who actually accosted Marcus and slapped the phone from his hand. The evidence in this case was not overwhelming. And while we agree with Mr. Profit that the evidence on which the State seeks to hold him accountable was...