text:
    IN RE ESTATE OF Arnold O. REXROAD, Sr.
    (Estate of Arnold O. Rexroad, Sr., Appellee, v. Mid-West Truckers Risk Management Association, Intervenor-Appellant).
    NO. 5-17-0342
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: May 15, 2018
    James M. Kelly and Jason W. Jording, of James Kelly Law Firm, of Peoria, for appellant.
    Brian M. Wendler, Angie M. Zinzilieta, and Paul E.H. Rademacher, of Wendler Law, P.C., of Edwardsville, for appellee.
   JUSTICE MOORE delivered the judgment of the court, with opinion.

¶ 1 The intervenor, Mid-West Truckers Risk Management Association (MTRMA), appeals the August 4, 2017, order of the circuit court of Effingham County, which struck in its entirety MTRMA's lien, pursuant to section 5(b) of the Workers' Compensation Act (Act) ( 820 ILCS 305/5(b) (West 2016) ), which it claimed from the proceeds of a wrongful death settlement recovered by the estate of Arnold O. Rexroad, Sr. (Estate). For the following reasons, we reverse and remand with directions that the circuit court adjudicate MTRMA's lien pursuant to statute and reconsider, in light of this opinion, MTRMA's request for sanctions pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013).

¶ 2 FACTS

¶ 3 On August 1, 2012, the Estate filed a probate action in the circuit court of Effingham County, requesting letters of administration and a supervised administration of the decedent's estate. On October 4, 2012, the circuit court entered an order appointing specified heirs of the Estate to serve as special administrators to pursue a wrongful death action arising from the death of the decedent (Indiana action). On December 5, 2014, MTRMA filed a petition to intervene in the probate action, making the following allegations.

¶ 4 MTRMA alleged that, at the time of his death, the decedent was employed by Hetzels Overland Transport, Inc. (Hetzels), and was killed in the course of his employment. At that time, Hetzels was a member of MTRMA, which is a self-insured pool association licensed and doing business in Illinois to provide workers' compensation benefits for its members and employees. One of the administrators of the Estate, Cathy Rexroad as decedent's widow, duly applied for, has received, and continued to receive workers' compensation benefits for the death of the decedent from MTRMA. MTRMA had been made aware of a partial settlement of the Indiana action and requested intervention in the probate matter for the purposes of protecting its lien pursuant to section 5(b) of the Act. 820 ILCS 305/5(b) (West 2014). Furthermore, MTRMA requested that it be allowed to participate in the probate court's approval of any settlement of the Indiana action.

¶ 5 On September 25, 2015, the Estate filed a motion for authorization to distribute statutory attorney fees. According to the motion, the Estate's claim against one of the defendants in the Indiana action, Lindsay Measel, settled for $100,000 (Measel settlement). The Estate requested authorization to disburse $25,000 from the proceeds of this settlement to the attorney for the Estate. On October 5, 2015, MTRMA filed a response to this motion, stating that it did not object to the attorney fee disbursement but it did claim a lien of $72,695.73, representing 75% of the workers' compensation benefits it had paid up to the date of the motion, pursuant to section 5(b) of the Act. 820 ILCS 305/5(b) (West 2014). The motion also recognized that, in addition to the 25% reduction for attorney fees in procuring the settlement, this lien amount was subject, pursuant to the same section, to a setoff for prorated costs incurred by the Estate. MTRMA requested a distribution of $72,695.73 minus the costs the Estate was entitled to pursuant to section 5(b) of the Act, in partial satisfaction of its workers' compensation lien.

¶ 6 On February 22, 2016, the Estate filed an "Unopposed Motion For Authorization To Distribute Statutory Attorney's Fees, Costs, and Workers' Compensation Lien." Stating that its motion was based on an agreement between the Estate and MTRMA, the Estate requested an order authorizing disbursement of $25,000 for attorney fees to counsel for the Estate, $12,053.61 for costs to counsel for the Estate, and the balance of $62,946.39 to MTRMA "as repayment for the workers' compensation lien." On March 10, 2016, the circuit court entered an order approving of this distribution of the proceeds of the Measel settlement.

¶ 7 On October 26, 2016, the Estate filed a motion to adjudicate workers' compensation lien, in which it requested that the remainder of MTRMA's workers' compensation lien be stricken in its entirety. The Estate argued that MTRMA is not entitled to the remainder of its lien due to the following allegations of wrongdoing on the part of MTRMA: (1) direct communications with the family of the decedent despite knowing the Estate was represented by counsel; (2) obstructing the Estate's counsel in investigating the wrongful death action by prohibiting the Estate from interviewing its employees, refusing to produce the truck and trailer the decedent was driving for inspection, and providing its inaccurate "alive and well" investigative reports to the defense; (3) failing to pay the decedent's widow the full amount of workers' compensation benefits owed; (4) demanding a distribution toward its lien from the Measel settlement; (5) objecting to an unspecified amount of costs claimed by the Estate as required to effect a settlement of the remainder of the Indiana action; and (6) seeking to recalculate its pro rata share of costs in light of the settlement of the remainder of the Indiana action, which the Estate characterized as a "reneg" of its prior agreement to pay its share of costs at the time of the Measel settlement.

¶ 8 The Estate attached several exhibits to its motion to strike the remainder of MTRMA's workers' compensation lien as corroboration for its allegations of misconduct. Exhibit A to the Estate's motion is a list of payments made by MTRMA on the decedent's widow's workers' compensation claim, including payments of $473.03 per week. Exhibit B is a letter from the Estate's counsel to Hetzels, requesting that it preserve all evidence related to the decedent's collision. Exhibit C is a letter from Hetzels' attorney notifying the Estate of his representation of Hetzels and requesting that the Estate direct any request for communications of its employees to the attorney. Exhibit D is an e-mail from counsel for the Estate to Hetzels' counsel, opposing this request on the basis that not all of Hetzels' employees are part of Hetzels' control group.

¶ 9 Exhibits E through J are a series of e-mails dated May 14, 2012, through October 2, 2013, whereby counsel for the Estate makes repeated requests of Hetzels for inspection of the truck and trailer the decedent was driving, as well as records regarding same. A January 11, 2013, e-mail from counsel for Hetzels indicates that he had forwarded the request for inspection to Hetzels' insurance carrier, expecting to speak with her that day and requesting that counsel for the Estate contact him to discuss the request to inspect. An October 2, 2013, e-mail from counsel for the Estate requests assistance in determining whether the truck the decedent was driving had an electrical problem that would have kept the truck's hazard lights from operating and asks if they would be unwilling or unable to supply the information informally. Exhibit K is a letter from counsel for the Estate to MTRMA's servicer, stating that, due to MTRMA's lack of cooperation in assisting with the investigation into the wrongful death claim, the Estate "will be left with no choice but to resist [the assertion of a lien] owing to the complete and total lack of cooperation," and concluding "[h]opefully this will change soon so that [the Estate] can reconsider [its] position."

¶ 10 Exhibit L to the Estate's motion is an e-mail exchange between counsel for the Estate and previous counsel for MTRMA in April 2015 on several matters, including the conduct of "alive and well" checks on the decedent's widow and the agreement in relation to the Measel settlement. Exhibits M and N are "alive and well check" reports on the widow for the Estate conducted by an investigative firm at the behest of MTRMA's servicer. These reports are dated May 19, 2015, and February 9, 2016, respectively. The reports do indicate that the investigator inquired of the decedent's widow as to whether she would consider a settlement of the workers' compensation claim. Exhibit O is an exchange between counsel whereby it is memorialized that there had been an underpayment of workers' compensation benefits by MTRMA. Exhibit P is the unopposed motion to distribute the Measel settlement between counsel for the Estate and MTRMA. Exhibits Q through V are an e-mail exchange whereby counsel for MTRMA insists on partial payment of the workers' compensation lien from the Measel settlement, as well as a deposition transcript in which issues that were illustrated through the prior exhibits are also evidenced.

¶ 11 On December 8, 2016, MTRMA filed a response to the Estate's motion to strike its workers' compensation lien. In its response, MTRMA argued that none of the issues raised by the Estate should be considered in determining whether MTRMA is entitled to its statutory lien. According to MTRMA, the circuit court's authority and obligation is to fully protect MTRMA's lien and requested adjudication of its lien pursuant to section 5(b) of the Act ( 820 ILCS 305/5(b) (West 2016) ), which requires it be reimbursed for 75% of the benefits it had paid, minus its pro rata share of costs. In addition, MTRMA argued that because the workers' compensation claim is not settled, MTRMA is entitled to a credit for any future payments in the amount of a 75% reduction in the benefit rate. MTRMA requested that the circuit court adjudicate its workers' compensation lien from the Estate's final settlement of $1.38 million, as provided by law. Both parties filed further briefs on these issues prior to a hearing that was held on January 9, 2017.

¶ 12 According to a memorandum of law filed by the Estate on February 9, 2017, the circuit court, at the January 9, 2017, hearing, requested that the parties "provide memorand[a] discussing how [MTRMA]'s lien and pro rata share of costs are calculated pursuant to Illinois case law and the [Illinois Supreme] Court's recent decision in Bayer v. Panduit Corp. Area Erectors , 2016 IL 119553, 407 Ill.Dec. 458, 63 N.E.3d 890." According to the Estate's memorandum, because MTRMA refused to wait until the conclusion of the Indiana action, seeking partial reimbursement of its lien at the time of the Measel settlement, MTRMA was no longer entitled to any reimbursement for its remaining lien.

¶ 13 On March 6, 2017, MTRMA filed its supplemental memorandum, setting forth in detail its proposed method for calculating its lien. According to this supplemental memorandum, the circuit court, at the January 9, 2017, hearing, specifically requested briefing on the present value of MTRMA's lien based on its obligation to make future workers' compensation payments to the decedent's widow. At the outset, MTRMA pointed out that, pursuant to section 5(b), the Estate's settlement of the wrongful death action was not lawful because MTRMA did not consent to the settlement and the court in the Indiana action did not issue an order fully indemnifying or protecting MTRMA's lien. MTRMA's memorandum then set forth, in detail, its position as to the following:

The total value of the Estate's workers' compensation claim;
MTRMA's maximum liability for attorney fees;
MTRMA's maximum liability for pro rata costs;
The value of workers' compensation payments to date;
Prior reimbursement by the Estate to the employer from the Measel settlement;
Calculation of amount presently owed by the Estate to MTRMA;
Calculation of MTRMA's setoff against future obligations.

¶ 14 Pursuant to its calculations, MTRMA argued that it was entitled to an immediate reimbursement of $22,187.41 through February 14, 2016. In addition, MTRMA suggested that due to the size of the wrongful death settlement and its maximum workers' compensation liability, it should be entitled to suspend payments to the decedent's widow, except 25% of its weekly payment obligation for its statutory share of attorney fees, which it represented would be $120.40 per week. However, MTRMA argued that, due to the Estate's alleged malfeasance in distributing settlement proceeds without obtaining MTRMA's consent or protecting its lien, it should be relieved of its obligations to pay its share of attorney fees in the form of reduced weekly payments and should be granted its fees and costs associated with recovering its lien pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013).

¶ 15 On March 17, 2017, the Estate filed a motion to supplement its memorandum in accordance with the circuit court's January 9, 2017, order that it supply affidavits supporting its claim for costs associated with prosecuting the Indiana action. The Estate also filed a reply to MTRMA's supplemental memorandum, attaching documentation that the Estate agreed to hold the contested lien amount in escrow. On June 9, 2017, the circuit court held another hearing on the adjudication of the workers' compensation lien, which consisted solely of argument by counsel. On August 4, 2017, the circuit court entered an order striking MTRMA's workers' compensation lien in its entirety. On September 1, 2017, MTRMA filed a notice of appeal.

¶ 16 ANALYSIS

¶ 17 The threshold issue presented by this appeal is whether a workers' compensation lien, pursuant to section 5(b) of the Act ( 820 ILCS 305/5(b) (West 2016) ), can be subject to reduction or elimination due to conduct on the part of the insurer in its handling of the workers' compensation claim itself, in its cooperation with an investigation of third-party causes of the injury, or in its negotiations with the employee regarding the satisfaction of its lien. This presents a question of law for which our standard of review is de novo. Environmental Control Systems, Inc. v. Long , 301 Ill. App. 3d 612, 622, 234 Ill.Dec. 901, 703 N.E.2d 1001 (1998). MTRMA's workers' compensation lien is governed by section 5(b) of the Act ( 820 ILCS 305/5(b) (West 2016) ), which provides:

"Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer's payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act."

¶ 18 According to this plain language of section 5(b), an employer's right to reimbursement of the full amount of benefits paid or to be paid to the injured or deceased worker is absolute. This is because the workers' compensation lien is a crucial foundation of workers' compensation law in Illinois. See, e.g. , Taylor v. Pekin Insurance Co. , 231 Ill. 2d 390, 397, 326 Ill.Dec. 34, 899 N.E.2d 251 (2008) ; Harder v. Kelly , 369 Ill. App. 3d 937, 942, 308 Ill.Dec. 342, 861 N.E.2d 673 (2007). This important public policy, that an employer, even if it is not negligent, should compensate the employee for an injury incurred on the job, is predicated upon there being no other recovery available. Denius v. Robertson , 98 Ill. App. 3d 83, 87, 53 Ill.Dec. 701, 424 N.E.2d 336 (1981). However, when recovery is obtained from the parties actually responsible for the employee's injury, fairness and justice require that the employer be reimbursed for the workers' compensation benefits he has paid or will pay. Id. There is no basis under Illinois law to hold that the alleged conduct on the part of MTRMA, even if true, outweighs the absolute right, pursuant to statute, that MTRMA has to reimbursement of its lien and the public policy underlying that right.

¶ 19 The Estate did not cite, to the circuit court or on appeal, any Illinois case that suggests that a circuit court has the power to limit or strike an employer's lien based on conduct on the part of the employer or its insurer. Every Illinois case cited by the Estate on this point either had nothing to do with the conduct of an employer or its insurer or did not deal with a workers' compensation lien. The only cases cited by the Estate in support of its position come from Delaware and Pennsylvania, and the Estate emphasizes the Delaware Supreme Court's opinion in Baio v. Commercial Union Insurance Co. , 410 A.2d 502, 506 (Del. 1979), supports the circuit court's order. We find this case to be unpersuasive and distinguishable.

¶ 20 In Baio , the workers' compensation insurer for the injured employee also was the insurer for one of the third-party tortfeasors. Id. at 504. Although the insurer first joined the injured employee as a plaintiff in the third-party action, once it discovered it was the commercial liability carrier for one of the defendants, the carrier "switched sides," defending its insured against the injured employee's third-party claim. Id. In so doing, the Delaware Supreme Court held that the carrier waived its right to recover its workers' compensation payments from the employee's recovery from the other defendants in the third-party action because it effectively blocked the employee from recovering against its insured. Id. at 507-08. Two justices dissented , finding that workers' compensation is an exclusive statutory remedy dependent for its proper functioning on a fixed system of statutory rights, remedies, and liabilities and disagreeing with the majority's application of " 'equitable principles' " in such a context. Id. at 508 (Quillen, J., dissenting, joined by McNeilly, J.).

¶ 21 In the case at bar, the conduct on the part of MTRMA that the Estate claims entitles it to an equitable extinguishment of MTRMA's statutory lien falls far short of the conflict of interest situation addressed by a split decision of the Delaware court in Baio , which that court found amounted to a waiver of the lien. In addition, Delaware's statute does not go as far as the Illinois statute in requiring the circuit court to protect the employer's lien in a third-party action or providing that a settlement that does not have the employer's consent is invalid. See Del. Code Ann. tit. 19, § 2363 (West 2016) ; cf. 820 ILCS 305/5(b) (West 2016). We agree with MTRMA's position on appeal that the differences in the character of the alleged conduct at issue on the part of MTRMA, as well as differences in the language of the statutes in Delaware and Illinois, provide solid reasons for this court to decline to rely upon Baio to uphold an unprecedented extinguishment of the workers' compensation lien to which MTRMA is entitled as per the directive of section 5(b) of the Act. 820 ILCS 305/5(b) (West 2016). Accordingly, we must reverse the circuit court's order extinguishing MTRMA's lien.

¶ 22 Our decision follows well-established precedent interpreting the plain meaning of section 5(b) of the Act, which imposes upon the circuit court a duty of protecting the employer's lien. See, e.g. , Freer v. Hysan Corp. , 108 Ill. 2d 421, 426, 92 Ill.Dec. 221, 484 N.E.2d 1076 (1985) ; Silva v. Electrical Systems, Inc. , 183 Ill. 2d 356, 364, 233 Ill.Dec. 656, 701 N.E.2d 506 (1998) ("we have no authority to depart from the plain language of [section 5(b) of the Act] by reading into it exceptions, limitations, or conditions that the legislature did not express"); In re Estate of Dierkes , 191 Ill. 2d 326, 332, 246 Ill.Dec. 636, 730 N.E.2d 1101 (2000) (an employee is entitled to retain only that portion of a recovery from the third-party tortfeasor that exceeds the workers' compensation benefits he received). We turn, then, to directions on remand.

¶ 23 After providing for a lien on behalf of the employer on any recovery an injured employee receives from a third-party tortfeasor, section 5(b) provides as follows:

"Out of any reimbursement received by the employer pursuant to this Section the employer shall pay his pro rata share of all costs and reasonably necessary expenses in connection with such third-party claim, action or suit and where the services of an attorney at law of the employee or dependents have resulted in or substantially contributed to the procurement by suit, settlement or otherwise of the proceeds out of which the employer is reimbursed, then, in the absence of other agreement, the employer shall pay such attorney 25% of the gross amount of such reimbursement." 820 ILCS 305/5(b) (West 2016).

¶ 24 Here, MTRMA's lien was partially satisfied by the earlier $100,000 Measel settlement, and MTRMA paid its 25% of attorney fees as well as its pro rata share of costs on that amount. Accordingly, in adjudicating MTRMA's lien on remand, this must be taken into account. In addition, MTRMA's future liability to the decedent's widow is required to be considered in adjudicating the lien, and MTRMA's suggestion that this take the form of deductions from future payments, except 25% for attorney fees, has a basis in Illinois law in that it may be considered as a method for adjudicating the lien as to future workers' compensation payments for which MTRMA is liable. See Bayer v. Panduit Corp. , 2016 IL 119553, ¶ 10, 407 Ill.Dec. 458, 63 N.E.3d 890 (citing Zuber v. Illinois Power Co. , 135 Ill. 2d 407, 418, 142 Ill.Dec. 871, 553 N.E.2d 385 (1990) ). Of course, if MTRMA has paid further benefits to the decedent's widow since the circuit court erroneously extinguished the lien, those should be taken into account as well. Accordingly, on remand, the circuit court will need the benefit of updated briefing from the parties on the proper calculation of the lien, including future payments, as well as a new hearing. Finally, we note that MTRMA requested sanctions against the Estate, pursuant to Illinois Supreme Court Rule 137 (eff. July 1, 2013). On remand, the circuit court should reconsider MTRMA's request in light of this opinion and the language and spirit of Rule 137.

¶ 25 CONCLUSION

¶ 26 For the foregoing reasons, the August 4, 2017, order of the circuit court of Effingham County, which struck, in its entirety, MTRMA's workers' compensation lien, is reversed, and this cause is remanded with directions that the circuit court, after the benefit of further briefing and a new hearing, adjudicate MTRMA's lien in its entirety in accordance with Illinois law and reconsider MTRMA's motion for Rule 137 sanctions in light of this opinion.

¶ 27 Reversed and remanded with directions.

Justices Welch and Overstreet concurred in the judgment and opinion.

      At oral argument, counsel for MTRMA represented that the balance of the settlement from all defendants other than Measel was $1.48 million.

      Section 8(a) of the Act provides that the employer pay necessary medical expenses for an injured employee. 820 ILCS 305/8(a) (West 2016).

      Illinois courts have consistently treated the employer and its insurance carrier as interchangeable for purposes of protecting a lien pursuant to section 5(b) (see, e.g. , Brandt v. John S. Tilley Ladders Co. , 145 Ill. App. 3d 304, 308, 99 Ill.Dec. 534, 495 N.E.2d 1269 (1986) ), and the Estate does not argue otherwise in this case.

      Subject to the employer's contribution to the attorney fees and costs necessary to pursue the third-party claim, pursuant to subsequent language in section 5(b), to be detailed below.

      To recap, the alleged conduct on the part of MTRMA consists of the following: that it failed to cooperate in the Estate's investigation, failed to pay the full amount of weekly benefits, engaged in ex parte communications with the decedent's widow, and insisted on partial satisfaction of its lien from the Measel settlement. As to MTRMA's insistance on partial satisfaction of its lien from the Measel settlement, as explained in this opinion, MTRMA was within its rights. With regard to the other allegations of misconduct on the part of MTRMA, we note that the law provided the Estate with a method of addressing each of these issues as they presented themselves throughout the course of the workers' compensation proceedings and the Indiana action.

      While the Delaware statute simply provides that an injured employee who recovers from a third party must reimburse the employer or its workers' compensation carrier for any amounts paid for workers' compensation, section 5(b) of the Act provides that if an injured employee brings a third-party action, the employer has the following rights: "The employer may, at any time thereafter join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages by reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of employers, such consent is not required where the employer has been fully indemnified or protected by Court order." 820 ILCS 305/5(b) (West 2016).

      We note that after the circuit court requested briefing on the calculations required to adjudicate MTRMA's lien, the Estate simply filed another brief requesting the lien be extinguished. On remand, if the Estate chooses to submit a brief to the circuit court, the brief should contain a good-faith argument regarding the proper calculations for the reimbursement of the lien, according to Illinois law.


source: Caselaw Access Project

license: Public Domain

text:
    ILLINOIS STATE BAR ASSOCIATION MUTUAL INSURANCE COMPANY, Plaintiff-Appellant, v. LEIGHTON LEGAL GROUP, LLC, an Illinois Limited Liability Company; G. Timothy Leighton; Carol M. McClure; and Cynthia S. McClure, Defendants-Appellees.
    NO. 4-17-0548
    Appellate Court of Illinois, Fourth District.
    FILED May 22, 2018
    Pretzel & Stouffer, Chtrd., of Chicago (Robert Marc Chemers, Peter G. Syregelas, and Philip G. Brandt, of counsel), for appellant.
    Amelia S. Buragas, of Kelly Law Offices, P.C., of Bloomington, for appellees Leighton Legal Group, LLC, and G. Timothy Leighton.
    Russell L. Reed, of Hinshaw & Culbertson, LLP, of Springfield, for other appellees.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In August 2016, plaintiffs, Carol M. McClure and Cynthia S. McClure, filed a complaint against G. Timothy Leighton and the Leighton Legal Group, LLC (collectively, the insured); Daniel Sanchuk; DPS Consulting, LLC; and other nominal defendants in the Superior Court for the District of Columbia. The insured was an attorney and cotrustee for a trust of which plaintiffs were the remainder beneficiaries.

¶ 2 The complaint (1) sought a declaratory judgment as to the ownership of the trust property, (2) sought restoration of trust property, (3) sought a constructive trust, (4) requested termination of the trust, (5) alleged self-dealing by the insured, (6) alleged breach of good faith and fair dealing, (7) alleged breach of trust for failure to administer the trust, (8) requested the removal of the trustees, and (9) sought the appointment of a special fiduciary to perform an accounting of trust property. Throughout the complaint, plaintiffs alleged willful conduct by the insured.

¶ 3 In September 2016, the Illinois State Bar Association Mutual Insurance Company (hereinafter, ISBA) filed a complaint for declaratory judgment, contending it had no duty to defend the insured against the aforementioned complaint. ISBA asserted that the insured's actions constituted intentional conduct and was excluded from coverage.

¶ 4 In March 2017, the insured filed a motion for a judgment on the pleadings, arguing that the underlying complaint's allegations fall within, or potentially within, the policy's coverage. In May 2017, ISBA filed a motion for judgment on the pleadings, asserting again it did not owe a duty to defend the insured because his actions as alleged in the underlying complaint were intentional. In June 2017, the trial court concluded that ISBA had a duty to defend under the terms of the policy.

¶ 5 ISBA appeals, arguing that the trial court erred by granting judgment in favor of the insured because "the underlying [c]omplaint clearly alleged intentional conduct which is expressly excluded from coverage under the ISBA Mutual policy." We conclude that the insured's conduct, as alleged in the underlying complaint, is excluded from coverage.

¶ 6 I. BACKGROUND

¶ 7 A. The Underlying Complaint

¶ 8 1. The Joseph McClure Trust

¶ 9 In August 2016, plaintiffs filed the underlying complaint against the insured in the Superior Court for the District of Columbia. The underlying complaint stated that nearly 40 years earlier, Joseph McClure and James Lundberg formed a variety of business entities to co-own real property and conduct business. The complaint noted that Joseph and James acquired valuable real estate within the District of Columbia. In 1992, James died. On July 7, 1995, Joseph executed his last will and testament. On July 11, 1995, Joseph died.

¶ 10 Joseph's will directed that after satisfying specific bequests, the remainder of his property would be sold to establish an irrevocable trust (hereinafter, the Joseph McClure Trust). The Joseph McClure Trust had specific provisions for nomination of trustees, designation of beneficiaries, use of a qualified financial institution to comanage the trust, and instructions for distribution of the trust corpus to the remainder beneficiaries. The will provided that Joseph's brother, Cecil McClure, would be the income beneficiary of the trust. Upon Cecil's death, the trust corpus was to be distributed to the Lundberg Family Education Fund and to Cecil's children. Plaintiffs are Cecil's children.

¶ 11 2. The Cecil Q. McClure Irrevocable Trust

¶ 12 The underlying complaint alleged that, in October 1998, Joseph's estate closed without a complete liquidation of his property. The complaint then alleged that the insured drafted the Cecil O. McClure Irrevocable Trust (hereinafter, the Cecil McClure Trust). The complaint further alleged that in December 1998, the insured attempted to unlawfully "decant" the Joseph McClure Trust by transferring Joseph's property to the Cecil McClure Trust. (Trust decanting refers to the act of "pouring" the principal of an irrevocable trust into a new trust with different terms. See Ferri v. Powell-Ferri , 476 Mass. 651, 72 N.E.3d 541, 546 (2017) ; see also Natalie M. Kuehn et al., Survey of Illinois Law: Trusts and Estates , 39 S. Ill. U. L.J. 647, 657-60 (2015).)

¶ 13 Similar to the Joseph McClure Trust, the Cecil McClure Trust made Cecil the income beneficiary with the Lundberg Family Education Fund and Cecil's children as the remainder beneficiaries. Nevertheless, the Cecil McClure Trust contained key differences such as (1) including an in terrorem clause, (2) eliminating the requirement to use a qualified financial institution as a cotrustee, (3) appointing the insured as a cotrustee, and (4) eliminating the requirement to sell Joseph's property. (An in terrorem clause is a provision in a trust document or a will that invalidates a gift to a beneficiary who unsuccessfully challenges the validity of the testamentary document. See In re Estate of Lanterman , 122 Ill. App. 3d 982, 985, 78 Ill.Dec. 330, 462 N.E.2d 46, 47-48 (1984) ; see also Gerry W. Beyer et al., The Fine Art of Intimidating Disgruntled Beneficiaries With In Terrorem Clauses , 51 SMU L. Rev. 225, 226-27 (1998).)

¶ 14 3. The Allegations of Wrongdoing

¶ 15 In September 2010, Cecil McClure died. The underlying complaint alleged that the insured told the plaintiffs that the remainder beneficiaries would receive quarterly income distributions. Plaintiffs requested the trust corpus be liquidated and the proceeds distributed to the remainder beneficiaries. The complaint asserted that the insured denied this request because the real estate market was poor and because plaintiffs were not entitled to any distribution of trust corpus. Instead, the insured continued to administer the Cecil McClure Trust and give quarterly income distributions.

¶ 16 The underlying complaint alleged that the insured created a self-compensation scheme because the insured (1) included an in terrorem clause, (2) eliminated the requirement to use a qualified financial institution as a cotrustee, and (3) appointed himself as a cotrustee. The underlying complaint further asserted that the insured and others collected excessive fees while managing the trust.

¶ 17 Throughout the underlying complaint, plaintiffs alleged willful conduct by the insured. For example, count IV alleged that the insured "willfully refused to distribute the remaining trust assets." (Emphasis added.) Count V alleged self-dealing by the insured, arguing that he refused to liquidate the trust corpus "in order to perpetuate [his] self-compensation scheme ." (Emphasis added.) Count VI alleged that the insured willfully misinformed the plaintiffs in bad faith that they were not entitled to distribution of the trust corpus. Count VII alleged breach of trust, asserting that the insured "committed breach of trust by willfully disregarding the termination provision of the trust and refusing to distribute the trust assets." (Emphasis added.) Count VIII requested removal of the insured as trustee, arguing that he "willfully committed [a] serious breach of trust in failing to fulfill [his] fiduciary duties." (Emphasis added.)

¶ 18 B. ISBA's Complaint for Declaratory Judgment

¶ 19 In September 2016, ISBA filed a complaint for declaratory judgment against the insured. ISBA conceded that the insured was covered under its professional liability insurance policy but alleged it had no duty to defend him based upon the allegations of the underlying complaint.

¶ 20 1. The Provisions of the ISBA Insurance Policy

¶ 21 ISBA's insurance policy provides coverage for damages and claim expenses arising out of a "wrongful act," which the policy defines as "any actual or alleged negligent act, error, or omission in the rendering of or failure to render professional services." The policy notes that "professional services" includes working "as an administrator, * * * trustee, or any other similar fiduciary activity." However, the policy explicitly excludes from coverage any claim "arising out of any criminal, dishonest, fraudulent or intentional act or omission."

¶ 22 2. ISBA's Claim and the Insured's Answer

¶ 23 ISBA alleged it had no duty to defend because the insured's actions were dishonest, intentional, and fraudulent and therefore excluded from coverage. In November 2016, the insured filed an answer to ISBA's complaint, contending that ISBA had a duty to defend.

¶ 24 C. The Motions for Judgment on the Pleadings

¶ 25 In March 2017, the insured filed a motion for a judgment on the pleadings, noting that an insurer has a duty to defend against an underlying complaint if the "allegations fall within, or potentially within , the policy's coverage." (Emphasis in original.) The insured conceded that this dispute "could be the result of intentional conduct." However, the insured contended that "to the extent that the allegations have any merit, they are much more likely to be the result of mere negligence." Thus, the insured contended ISBA had a duty to defend. In May 2017, ISBA filed a cross-motion for judgment on the pleadings, contending that the insured's actions as alleged in the underlying complaint constituted intentional conduct that was excluded from coverage.

¶ 26 D. The Trial Court's Ruling

¶ 27 In June 2017, the trial court concluded that "read as a whole, the complaint herein in certain counts sounds in negligence such that [ISBA] has a duty to defend." The court therefore granted the insured's motion for judgment on the pleadings, denied ISBA's cross-motion, and entered judgment in favor of the insured.

¶ 28 This appeal followed.

¶ 29 II. ANALYSIS

¶ 30 ISBA appeals, asserting that the trial court erred in granting judgment in favor of the insured because "the underlying [c]omplaint clearly alleged intentional conduct which is expressly excluded from coverage under the ISBA Mutual policy." We conclude that the insured's conduct, as alleged in the underlying complaint, is excluded from coverage.

¶ 31 A. The Applicable Law

¶ 32 1. Judgment on the Pleadings

¶ 33 Any party may move for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil Procedure. 735 ILCS 5/2-615(e) (West 2016). Judgment on the pleadings is proper when the pleadings disclose no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Allstate Property & Casualty Insurance Co. v. Trujillo , 2014 IL App (1st) 123419, ¶ 15, 379 Ill.Dec. 684, 7 N.E.3d 110. In ruling on a motion for judgment on the pleadings, the trial court can only consider the facts apparent from the face of the pleadings, attachments to the pleadings, judicial admissions in the record, and matters subject to judicial notice. Fagel v. Department of Transportation , 2013 IL App (1st) 121841, ¶ 26, 372 Ill.Dec. 58, 991 N.E.2d 365 ; 735 ILCS 5/2-606 (West 2016).

¶ 34 2. An Insurer's Duty to Defend

¶ 35 In a declaratory judgment action in which the issue is whether the insurer has a duty to defend, courts first look to the allegations in the underlying complaint and compare those allegations to the relevant provisions of the insurance contract. Pekin Insurance Co. v. Precision Dose, Inc. , 2012 IL App (2d) 110195, ¶ 30, 360 Ill.Dec. 171, 968 N.E.2d 664. If the facts alleged in the underlying complaint fall within, or potentially within, the policy's coverage, the insurer has a duty to defend. Pekin Insurance Co. v. Wilson , 237 Ill. 2d 446, 455, 341 Ill.Dec. 497, 930 N.E.2d 1011, 1017 (2010). The insurer may refuse to defend only if it is clear from the face of the underlying complaint that the allegations fail to state facts that bring the cause within, or potentially within, coverage. Illinois State Bar Ass'n Mutual Insurance Co. v. Cavenagh , 2012 IL App (1st) 111810, ¶ 14, 368 Ill.Dec. 55, 983 N.E.2d 468.

¶ 36 3. Exclusionary Clauses for Intentional Conduct

¶ 37 If an insurer relies on an exclusionary clause to deny coverage, it must be clear and free from doubt that the exclusionary clause applies. American Zurich Insurance Co. v. Wilcox & Christopoulos, L.L.C. , 2013 IL App (1st) 120402, ¶ 34, 368 Ill.Dec. 361, 984 N.E.2d 86 ; Atlantic Mutual Insurance Co. v. American Academy of Orthopaedic Surgeons , 315 Ill. App. 3d 552, 560, 248 Ill.Dec. 342, 734 N.E.2d 50, 56 (2000). The construction afforded to intentional act exclusions is to deny coverage when the insured has (1) intended to act and (2) specifically intended to harm a third party. State Farm Fire & Casualty Co. v. Leverton , 314 Ill. App. 3d 1080, 1085, 247 Ill.Dec. 762, 732 N.E.2d 1094, 1098 (2000). The burden is on the insurer to prove that an exclusionary clause applies. Country Mutual Insurance Co. v. Bible Pork, Inc. , 2015 IL App (5th) 140211, ¶ 38, 397 Ill.Dec. 712, 42 N.E.3d 958.

¶ 38 An exclusionary clause for intentional conduct will not apply when a claim arises, or could potentially arise, from a negligent act or omission. Lincoln Logan Mutual Insurance Co. v. Fornshell , 309 Ill. App. 3d 479, 484, 242 Ill.Dec. 750, 722 N.E.2d 239, 242 (1999). However, phrases in the underlying complaint such as mislead, conceal, scheme, deceive, intentionally, or willfully are the " 'paradigm of intentional conduct and the antithesis of negligent actions.' " Steadfast Insurance Co. v. Caremark Rx, Inc. , 359 Ill. App. 3d 749, 760, 296 Ill.Dec. 537, 835 N.E.2d 890, 899 (2005) (quoting Connecticut Indemnity Co. v. DER Travel Service, Inc. , 328 F.3d 347, 351 (7th Cir. 2003) ).

¶ 39 4. Construction of the Policy and the Standard of Review

¶ 40 The primary objective when construing the language of an insurance policy is to ascertain and enforce the intentions of the parties as expressed in their agreement. Pekin Insurance Co. , 2012 IL App (2d) 110195, ¶ 31, 360 Ill.Dec. 171, 968 N.E.2d 664. Terms that are clear and unambiguous will be given their plain and ordinary meaning. Id. Ambiguous provisions that limit or exclude coverage will be interpreted liberally in favor of the insured. Id. If the terms of an insurance policy are susceptible to more than one reasonable meaning, a court should strictly construe those terms against the insurer and in favor of the insured. Id. Courts will construe the policy as a whole and consider the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Wilson , 237 Ill. 2d at 456, 341 Ill.Dec. 497, 930 N.E.2d 1011. The construction of an insurance policy is a question of law reviewed de novo . Cavenagh , 2012 IL App (1st) 111810, ¶ 12, 368 Ill.Dec. 55, 983 N.E.2d 468. Likewise, a trial court's granting of a motion for judgment on the pleadings is reviewed de novo . Trujillo , 2014 IL App (1st) 123419, ¶ 16, 379 Ill.Dec. 684, 7 N.E.3d 110.

¶ 41 B. This Case

¶ 42 On appeal, ISBA argues that the underlying complaint clearly alleged intentional conduct that is excluded from its policy. The insured counters that "to the extent that the allegations * * * have any merit[,] they are just as likely, if not more likely, to be the result of professional negligence." Thus, the insured contends that as long as plaintiff's complaint could be based in negligence, ISBA has a duty to defend because the allegations could potentially fall within coverage. We conclude that the insured's conduct, as alleged in the underlying complaint, is excluded from coverage. See American Zurich Insurance , 2013 IL App (1st) 120402, ¶ 34, 368 Ill.Dec. 361, 984 N.E.2d 86.

¶ 43 1. Intentional Conduct

¶ 44 The underlying complaint alleged that the insured "willfully refused" to distribute the trust corpus "in order to perpetuate their self-compensation scheme ." (Emphasis added.) The complaint further alleged that the insured "[w ]ilfully " misinformed the plaintiffs that they were not entitled to the trust corpus upon the death of Cecil McClure. (Emphasis added.) Likewise, the complaint alleged that the insured "willfully " committed a serious breach of trust by failing to fulfill his fiduciary duty. (Emphasis added.) The complaint also included allegations of bad faith.

¶ 45 Phrases in the underlying complaint such as mislead, conceal, scheme, deceive, intentionally, or willfully are the "paradigm of intentional conduct and the antithesis of negligent actions." (Internal quotation marks omitted.) Caremark Rx, Inc. , 359 Ill. App. 3d at 760, 296 Ill.Dec. 537, 835 N.E.2d 890. Accordingly, the allegations in the underlying complaint could not be the result of mere professional negligence. Rather, these allegations denote intentional conduct, which is excluded from coverage. See id.

¶ 46 2. Intentional Misconduct

¶ 47 As mentioned earlier, ISBA's insurance policy provides coverage for damages and claim expenses arising from "any actual or alleged negligent act, error, or omission in the rendering of or failure to render professional services." The policy explicitly excludes from coverage any claim "arising out of any criminal, dishonest, fraudulent or intentional act or omission." This court has previously discussed intentional act exclusions, as follows:

"The construction generally afforded to intentional act exclusions is to deny coverage where the insured has (1) intended to act and (2) specifically intended to harm a third party. This construction is the most logical interpretation and best represents the parties' intentions." Leverton , 314 Ill. App. 3d at 1085, 247 Ill.Dec. 762, 732 N.E.2d 1094.

¶ 48 The First District has explained that "[t]he word 'intent' for purposes of exclusionary clauses in insurance policies denotes that the actor desires to cause the consequences of his action or believes that the consequences are substantially certain to result from it." Aetna Casualty & Surety Co. v. Freyer , 89 Ill. App. 3d 617, 620, 44 Ill.Dec. 791, 411 N.E.2d 1157, 1159 (1980). This court has likewise concluded that "intentional act or omission" means (1) the insured intended to cause the consequence of his act or omission or (2) believed that the consequence of his act or omission was substantially certain to result. See Leverton , 314 Ill. App. 3d at 1086, 247 Ill.Dec. 762, 732 N.E.2d 1094 ; see also Freyer , 89 Ill. App. 3d at 620, 44 Ill.Dec. 791, 411 N.E.2d 1157. Essentially, exclusionary clauses for intentional conduct apply to intentional misconduct . See Freyer , 89 Ill. App. 3d at 620, 44 Ill.Dec. 791, 411 N.E.2d 1157. However, an exclusionary clause for intentional conduct does not apply merely because an insured intended to act. Leverton , 314 Ill. App. 3d at 1086, 247 Ill.Dec. 762, 732 N.E.2d 1094.

¶ 49 Construing "intentional act or omission" to mean "intentional misconduct" is also supported by the doctrine of noscitur a sociis . See People v. Qualls , 365 Ill. App. 3d 1015, 1020, 303 Ill.Dec. 580, 851 N.E.2d 767, 771 (2006). This doctrine holds that a court may determine the meaning of a word by examining the meaning and context of the surrounding words. Warren v. Lemay , 144 Ill. App. 3d 107, 113, 98 Ill.Dec. 279, 494 N.E.2d 206, 209 (1986) ; see Stephen J. Safranek, Scalia's Lament , 8 Tex. Rev. L. & Pol. 315, 340-42 (2004). In this case, the policy states that it does not apply to a claim "arising out of any criminal, dishonest, fraudulent or intentional act or omission" committed by the insured. Thus, the phrase "intentional act or omission" is within the broader context of an exclusionary clause seeking to deny coverage for criminal and dishonest acts.

¶ 50 Finally, the policy sought to provide coverage for negligent errors that arise during the practice of law while denying coverage for criminal, dishonest, and fraudulent conduct. As such, construing "intentional act or omission" to mean "intentional misconduct" is consistent with the type of insurance purchased, the nature of the risks involved, and the overall purpose of the contract. Wilson , 237 Ill. 2d at 456, 341 Ill.Dec. 497, 930 N.E.2d 1011.

¶ 51 In this case, the underlying complaint alleged that the insured unlawfully and without authority decanted the Joseph McClure Trust by transferring trust property to the newly created Cecil McClure Trust. Though mostly identical, the Cecil McClure Trust had materially different terms such as (1) an in terrorem clause, (2) no requirement to use a qualified financial institution as cotrustee, and (3) including the insured as a cotrustee. Plaintiffs alleged that the insured intentionally made these changes to establish a self-compensation scheme. These allegations clearly allege intentional misconduct, which is excluded from coverage. Further, this allegation of intentional misconduct could not be the result of mere negligence.

¶ 52 Accordingly, we conclude that the insured's conduct, as alleged in the underlying complaint, is excluded from coverage. See American Zurich Insurance , 2013 IL App (1st) 120402, ¶ 34, 368 Ill.Dec. 361, 984 N.E.2d 86 ; see also Illinois State Bar Ass'n Mutual Insurance Co. v. Mondo , 392 Ill. App. 3d 1032, 1039, 331 Ill.Dec. 914, 911 N.E.2d 1144, 1151 (2009). Therefore, ISBA had no duty to defend the insured in the underlying action.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, we reverse the trial court's judgment and enter judgment in favor of ISBA on its motion for judgment on the pleadings.

¶ 55 Reversed; judgment entered for ISBA.

Justices Holder White and DeArmond concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wesley Lawrence WHITFIELD, Defendant-Appellant.
    NO. 4-15-0948
    Appellate Court of Illinois, Fourth District.
    Filed June 8, 2018
    Michael J. Pelletier, Patricia Mysza, and Michael Gomez, of State Appellate Defender's Office, of Chicago, for appellant.
    Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Erin Wilson Laegeler, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant, Wesley Lawrence Whitfield, was convicted of aggravated battery of a child ( 720 ILCS 5/12-3.05(b)(2) (West 2012) ) and sentenced to four years in prison. He appeals, arguing (1) portions of his videotaped interrogation were improperly admitted at his trial and played for the jury and (2) the State improperly impeached a defense witness. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In September 2014, the State charged defendant with two counts of aggravated battery of a child (id. ). It alleged defendant caused bodily harm to his two children, N.W. and S.W., by repeatedly striking N.W. (count I) and repeatedly striking and burning S.W. (count II). In January 2015, defendant waived his right to counsel and began representing himself.

¶ 4 The record reflects defendant filed several pretrial motions, including two motions addressing his bond. In January 2015, he filed a motion for bond reduction or a recognizance bond. At a hearing that same month, defendant's father, Luther Whitfield, testified on defendant's behalf. Luther agreed he received a call in September 2014 regarding defendant's "case." He learned defendant had been charged and the amount of his bond. The State declined any cross-examination, and following defendant's testimony on his own behalf, the trial court granted the motion and lowered defendant's bond.

¶ 5 In June 2015, defendant filed a motion for a recognizance bond. In July 2015, the trial court conducted a hearing on that motion and other pretrial motions filed by defendant, including a motion to suppress evidence. Relative to the motion for a recognizance bond, Luther, again, testified on defendant's behalf. He stated defendant's children had been in a car accident approximately a week before the date of the alleged offenses and defendant's arrest. According to Luther, the accident resulted in N.W. receiving medical care. Luther suggested the charges against defendant were based on injuries the children likely sustained in the automobile accident. Further, he testified he attempted to obtain medical records related to the accident for defendant but was unable to do so. Ultimately, the court denied defendant's motion.

¶ 6 In August 2015, defendant's jury trial was conducted. The record reflects the matter proceeded to trial on only count I, charging defendant with the aggravated battery of N.W. Count II, setting forth the charges related to S.W., was dismissed on the State's motion.

¶ 7 At trial, Laura Cole testified she was the maternal grandmother of N.W. and S.W. Her daughter Nicole was the children's mother and had been in a relationship with defendant. On October 4, 2011, the day N.W. was born, Nicole passed away. Thereafter, defendant was the primary caregiver for both children. At the time of the alleged offense, N.W. was two years old.

¶ 8 In September 2014, Laura resided in Wisconsin but traveled to Decatur, Illinois, with her daughter Markeena Cole to meet with defendant and visit S.W. and N.W. Laura testified she and Markeena arrived at defendant's home at around 5 p.m. or 6 p.m. on September 3, 2014. She visited with her grandchildren and asked defendant if the children could stay the night with her at her hotel. Initially, defendant refused; however, at the encouragement of a friend, he allowed Laura and Markeena to take the children. Laura recalled that, although the weather was sunny and the temperature was 85 or 90 degrees, N.W. was dressed in a long-sleeved shirt and jeans.

¶ 9 After leaving defendant's house, Laura, Markeena, and the children visited Thelma Lawson's home, which Laura described as "the kids' cousin['s] house." While at Lawson's home, Laura heard S.W. say " '[d]addy whip [N.W.] like this' " and saw S.W. demonstrate "how [N.W.] got a whipping." Laura then raised N.W.'s shirt and saw "the welts and everything on him." She showed what she discovered to Markeena and Lawson.

¶ 10 Ultimately, Laura took N.W. to the hospital. She testified the police and the Illinois Department of Children and Family Services (DCFS) were called, and S.W. and N.W. were taken into protective custody. In October 2014, Laura relocated to Decatur "for [her] grandkids." At the time of trial, both children were in her care.

¶ 11 During her testimony Laura viewed photographs, which she testified depicted the appearance of N.W.'s injuries on September 3, 2014. She denied that any of the injuries shown in the photographs occurred between the time she picked N.W. up from defendant's house and when she took N.W. to the hospital.

¶ 12 On cross-examination, Laura acknowledged that she had tried to gain custody of S.W. and N.W. in the past. Further, she agreed that, prior to her arrival in Decatur, defendant told her during a telephone conversation that the children had recently been in a car accident. Also, Laura acknowledged that, after discovering N.W.'s injuries at approximately 8:30 p.m., she went to her hotel before taking N.W. to the hospital.

¶ 13 Markeena testified similarly to Laura, stating she and her mother traveled from Wisconsin to Decatur on September 3, 2014, to visit S.W. and N.W.; defendant reluctantly allowed them to have the children overnight; and they initially took the children to Lawson's home. While at Lawson's home, Laura showed Markeena injuries on N.W. Markeena testified N.W. had been wearing a long-sleeved shirt and long pants although it was "[b]urning hot" outside and close to 90 degrees.

¶ 14 After noticing N.W.'s injuries, Markeena, Laura, and the children went to a hotel and "kind of sat down and decided what would be the best thing to do about the situation." Markeena concluded that the children should not be returned to defendant and that they needed to "get some help." She stated they then took the children to the hospital. Markeena denied that N.W. was injured while in her and Laura's care. On cross-examination, she acknowledged that Laura had tried to gain custody of the children in the past.

¶ 15 Dr. Edward Leon testified he was an emergency room physician in Decatur and treated N.W. at the hospital in the early morning hours of September 4, 2014. According to Dr. Leon, he observed injuries on primarily the left side of N.W.'s body-specifically, on N.W.'s arm, back, buttocks, and left leg. He stated the injuries consisted of bruising and what appeared to be "belt marks." Dr. Leon estimated that the injuries were inflicted "within a few days" and opined they were "consistent with being whipped with a cord or a belt."

¶ 16 On cross-examination, Dr. Leon testified he first examined N.W. around 12:30 a.m. He recalled that the children's grandmother was present and was concerned about child abuse. Dr. Leon testified he was not aware that the children had been in a car accident approximately a week prior to their hospital visit. On re-direct, Dr. Leon testified the injuries depicted in a photograph of N.W.'s left arm did not appear to be consistent with a car accident. On re-cross-examination, he opined the injuries depicted in the same photograph appeared to have been inflicted "within days" rather than within the course of several hours.

¶ 17 City of Decatur police officer Jason Danner testified he went to Decatur Memorial Hospital on September 4, 2014, in response to a report of child abuse. Upon his arrival, he spoke with Laura and made contact with N.W. Danner stated he observed injuries to N.W., which he described as follows: "[N.W.] had welts up and-or looped-shaped welts all up and down his arms, his legs. He had bruising and scars on his back and abrasion-an old abrasion on the side of his hip." Danner identified photographs he took of N.W.'s injuries at the hospital. He testified the photographs fairly and accurately depicted how N.W.'s injuries appeared on September 4, 2014. Ultimately, the photographs, contained in People's exhibit Nos. 2 through 19, were admitted into evidence.

¶ 18 Danner further testified that on September 5, 2014, defendant was taken into custody. At police headquarters, he made contact with defendant and read him the Miranda warnings ( Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ). Defendant indicated he understood his rights, and he agreed to speak with Danner. According to Danner, defendant asserted that he did not "beat his kids; he only spank[ed] them."

¶ 19 On cross-examination, Danner explained differences in some of the photographs that depicted the same area of N.W.'s body as the result of different camera angles and different lighting. Further, he testified he was not aware that the children had been in a car accident in the week before the events at issue and defendant did not inform him of a car accident at the time of their interview.

¶ 20 Police officer Josh Whitney testified he responded to Decatur Memorial Hospital on September 4, 2014, and was advised by Danner that defendant was suspected of causing injury to N.W. Whitney contacted defendant by telephone and told him to come to the hospital. He testified he explained to defendant that the police needed to talk to him about his children. According to Whitney, defendant stated he would be there but never showed up. Police officer Tyler Nottingham testified he arrested defendant on September 5, 2014.

¶ 21 Police officer Kyle Daniels testified he interviewed defendant on September 5, 2014. Initially, he reminded defendant of the Miranda warnings, and defendant agreed to speak to him without having an attorney present. Daniels testified he recorded his interview and informed defendant that he was being recorded. The hour-long audio and video recording was then played for the jury. Daniels agreed that the recording was complete and accurate "except for certain edits that were made to remove dead time and to remove discussion of another incident." Further, he testified that approximately halfway through the interview, he and defendant were joined by Eric Ethel, a juvenile detective who was training Daniels.

¶ 22 In the recorded interview, defendant acknowledged that he disciplined and spanked his children. Specifically, he admitted spanking N.W. with a thin, leather belt that was folded over. Defendant reported that N.W. would move or be "squirming" around during a spanking, which caused defendant to strike areas other than N.W.'s buttocks, including N.W.'s arm, hand, and the inside of his leg. Defendant admitted that his spanking of N.W. with the belt caused "welts" on N.W. and the "circular marks" that appeared on N.W.'s body, particularly N.W.'s left arm. Defendant agreed that "most" of the injuries to N.W. depicted in photographs shown to him by the officers were from being spanked. Further, he acknowledged that the marks on N.W. "looked bad" and not "right." He stated he did not mean to "break [N.W.'s] skin" when spanking him. Defendant also admitted that he went "overboard," that he "made a mistake," and that he could use "counseling" on how to discipline his children. Finally, defendant acknowledged that the injuries depicted in the photographs of N.W. occurred at "different times."

¶ 23 The record reflects defendant did not object to the recording being played for the jury. However, the last several minutes of the recording showed him alone in the interview room praying. Defendant did raise an objection to that portion of the video being played, which the trial court overruled.

¶ 24 When cross-examining Daniels, defendant asked to play portions of the video recording again; however, the State objected and the trial court sustained its objection. On cross-examination, Daniels further agreed that defendant reported to him that the children had been in a car accident prior to the events at issue. He stated he investigated the accident and learned from a traffic accident report that S.W. "was listed with no injury and [N.W.] was non incapacitating injury." Daniels stated he did not investigate further into the traffic accident because none of N.W.'s injuries "were consistent with a traffic accident."

¶ 25 At the conclusion of Daniels's testimony, the State moved to admit its exhibits, including the recording, into evidence. Defendant objected to the recording on the basis that the State "was trying to speculate that [he] made a confession to intentionally harm [his] son," which defendant asserted was not true. He also objected to the recording on the bases that the end of the recording showed him praying while alone in the interview room and because Daniels did not inform him that he was being recorded. The trial court allowed the recording into evidence over defendant's objections.

¶ 26 Next, defendant presented evidence on his own behalf. He first called his sister, Latasha Whitfield, as a witness. Latasha testified defendant had cared for his children since birth. She denied witnessing defendant "beat" or be "abusive" to his children.

¶ 27 Latasha further testified that on August 21, 2014, she was in a car accident with S.W. and N.W. She stated the driver's side of her vehicle was "T-boned" by a sport utility vehicle "truck." "[I]t knocked [her] so hard [that she] ben[t] the gear shift" and was rendered unconscious. According to Latasha, the children were "shooken up" and "knocked" around by the force of the accident. She testified everyone was hurt, but she did not experience pain until approximately one week after the accident. N.W. was behind the driver's seat and thrown out of his car seat. He was placed in a neck brace and taken to the hospital by ambulance.

¶ 28 On cross-examination, Latasha acknowledged having a felony conviction for aggravated robbery. Additionally, she testified she observed "some blood on [N.W.'s] mouth" following the car accident. Otherwise, she did not check his body for injury. Latasha testified that immediately following the accident she was being "checked" and had to stay at the accident scene while N.W. was taken away in an ambulance. When shown the photographs of N.W. contained in People's exhibit Nos. 2 through 19, Latasha could not identify any of the injuries depicted in the photographs as being sustained in the car accident.

¶ 29 Defendant's father, Luther, was next called to testify. Luther stated he was aware of the August 21, 2014, car accident. He described it as a "major accident" and stated N.W. was thrown from the left to the right side of the car. Luther rode with N.W. in the ambulance to the hospital. He stated N.W. was placed in a neck brace and had "marks and scratches all on the left side of his arm" and "a red mark on his back." Luther testified that injuries to N.W. depicted in People's exhibit Nos. 2 through 19 were from the car accident. However, when shown People's exhibit No. 15, depicting injuries on N.W.'s back, Luther testified he did not observe N.W. "in that bad of a shape." More specifically, he testified he saw N.W. on the day that Laura took him for an overnight visit and did not observe the back injuries depicted in People's exhibit No. 15 at that time. Luther testified he was familiar with Laura and was aware that she previously tried to obtain custody of S.W. and N.W. on three separate occasions. Luther further testified that neither the police nor DCFS questioned him about the August 21, 2014, car accident.

¶ 30 On cross-examination, Luther acknowledged having a felony conviction for unlawful restraint, for which he served two years' probation. He testified he did not go to the police department with information that N.W.'s injuries were caused by the car accident because he "figured that the court would [find] out that [defendant] wasn't a child abuser" and the charges would be dropped. The following colloquy then occurred between Luther and the State:

"Q. Have you ever approached anyone in an attempt to give them this information that you've testified here today-to today for the first time?
A. Yes. They had bond court I had-I had told you and the judge here about it, yes.
Q. You told me?
A. You and the judge, about the car accident. Matter of fact, that was about a couple of weeks ago. I was in court, he called me up here to testify because I was trying to get him bond. You remember you trying to get bond on the motion that he tried to suppress some evidence.
Q. You're saying a couple of weeks you testified in court that-
A. That they was in a car accident. Y'all didn't ask me nothing about that. You-I told you I testified that they was in a car accident."

Luther specified that his testimony was during a hearing on defendant's "last motion" and involved "a motion to suppress some evidence."

¶ 31 Following Luther's testimony and outside the presence of the jury, the State asserted its intention to present, on rebuttal, a certified copy of the transcript of a bond hearing during which Luther testified for defendant. The State asserted that contrary to Luther's testimony at trial, he made no mention of the car accident or "it causing injuries to the child." Defendant objected on the basis that the State had a transcript of the wrong hearing and that Luther had been referring to a more recent bond hearing that also involved a motion to suppress by defendant. The trial court stated "that's something we'll deal with when it comes up."

¶ 32 Dwayne Jones next testified on defendant's behalf. He stated he was engaged to Shayla Cooper, defendant's sister. Jones also was aware of the car accident that occurred on August 21, 2014, and observed the accident scene. He stated the side of Latasha's car was totaled, glass was in the car, and the car seat was "tossed around." Jones next went to the hospital and saw N.W. who was wearing a hospital gown. He observed "a little cut or bruise on [N.W.'s left] arm," as well as "a couple of bruises [that] looked like scratches from maybe glass or something on [N.W.'s] back." Jones also testified that he was familiar with Laura and was aware that she had tried to "take [defendant's] kids from [him] in the past."

¶ 33 On cross-examination, Jones stated that following the accident N.W. had "a scratch or a slight cut from the glass" on his left arm, which he stated was approximately two inches long. Jones also observed "a couple of bruises" and a "little scratch" on N.W.'s upper back. Jones stated he did not observe blood coming out of N.W.'s mouth.

¶ 34 Shayla Cooper, defendant's sister, testified she was aware that Laura had made multiple attempts to obtain custody of defendant's children. Cooper also stated that she went to the hospital following the August 21, 2014, car accident. She recalled seeing N.W. wearing a neck brace. On cross-examination, Cooper testified that N.W.'s back did not look the same after the car accident as it did in the photograph in People's exhibit No. 15. Further, she denied noticing "any other injuries to [N.W.'s] body on the day of the car accident."

¶ 35 Thomas Copeland testified he was a pastor and had known defendant approximately six years. He gave defendant a ride to the hospital following the August 21, 2014, car accident. Copeland also observed the car that Latasha and the children had been riding in and described it as "totaled on the driver's side."

¶ 36 Barbara Whitfield testified she was defendant's mother. She was familiar with Laura and recalled that she tried to gain custody of defendant's children on several occasions. Barbara saw the aftermath of the car accident and described significant damage to the driver's side of Latasha's vehicle.

¶ 37 At the conclusion of defendant's evidence, the State presented police officer Craig Lundy as a rebuttal witness. Lundy testified he was a crash reconstructionist with the Decatur Police Department's fatal accident investigation team. He investigated the August 21, 2014, accident involving defendant's sister and children. Lundy described the accident as a single-contact crash. N.W. was riding in the vehicle that was struck and was positioned near the point of impact-the driver's side back door. However, Lundy noted there were "no visible injuries" and that "[n]o one was bleeding." He stated N.W. was taken to the hospital "to check on his condition as he was at the locus point of the contact."

¶ 38 The State also sought to admit the transcript of a January 2015 bond hearing during which Luther testified. Again, defendant objected on the basis that the State was presenting a transcript of a different hearing, stating his most recent bond hearing and the one during which Luther testified about the car accident, occurred in March 2015. The trial court allowed the transcript into evidence over defendant's objection, stating to defendant that "[i]f you want to get a transcript [of the more recent bond hearing], you can put on surrebuttal."

¶ 39 At the conclusion of the trial, the jury found defendant guilty of the charged offense. In September 2015, defendant filed several posttrial motions raising various claims of error not at issue on appeal and arguing he was denied a fair trial. In October 2015, the trial court conducted a hearing and denied defendant's motions. In November 2015, the court sentenced defendant to four years in prison.

¶ 40 This appeal followed.

¶ 41 II. ANALYSIS

¶ 42 A. Interrogation Video

¶ 43 On appeal, defendant first argues he was denied a fair trial because certain portions of his interrogation video were played for the jury and admitted into evidence at trial. He maintains the video contained inadmissible hearsay assertions from the investigating officers, improper opinions and commentary from the officers on his credibility and eventual defenses, and improper opinions from the officers on the strength of the State's evidence. Defendant contends the challenged statements from the officers were irrelevant and unduly prejudicial.

¶ 44 Initially, defendant acknowledges that he has forfeited this issue by failing to raise it with the trial court. See People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124, 1130 (1988) (holding that to preserve an issue for appellate review, a defendant must both make a trial objection and raise the issue in a written posttrial motion). However, he argues that inclusion of the officers' statements in the interrogation video amounted to plain error and this court should excuse his forfeiture.

¶ 45 Under the plain-error doctrine, a defendant's procedural default may be excused

"(1) when a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) when a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." (Internal quotation marks omitted.) People v. Sebby , 2017 IL 119445, ¶ 48 [417 Ill.Dec. 756], 89 N.E.3d 675.

"The initial analytical step under either prong of the plain error doctrine is determining whether there was a clear or obvious error at trial." Id. ¶ 49.

¶ 46 Whether evidence is relevant and admissible at trial is within the trial court's discretion. People v. Hanson , 238 Ill. 2d 74, 101, 345 Ill.Dec. 395, 939 N.E.2d 238, 254 (2010). On review, "[a] decision to admit evidence *** will not be overturned unless it is arbitrary, fanciful or unreasonable." Id.

¶ 47 Hearsay is not involved where a challenged statement "is admissible not for its truth, but for its effect on the listener." People v. Britz , 112 Ill. 2d 314, 320, 97 Ill.Dec. 768, 493 N.E.2d 575, 578 (1986). In other words, "[a]n out-of-court statement offered to prove its effect on a listener's mind or to show why the listener subsequently acted as he did is not hearsay and is admissible." (Internal quotation marks omitted.) People v. Sorrels , 389 Ill. App. 3d 547, 553, 329 Ill.Dec. 590, 906 N.E.2d 788, 793 (2009). However, even relevant evidence may be excluded where its probative value is substantially outweighed by its prejudicial effect. People v. Walker , 211 Ill. 2d 317, 337-38, 285 Ill.Dec. 519, 812 N.E.2d 339, 351 (2004).

¶ 48 In determining whether or which questions or statements by a police officer during an interrogation of the defendant are admissible, a trial court should consider (1) whether the officer's questions or statements would be helpful to the jury so as to place the defendant's responses (or lack thereof) into context and (2) assuming the first criteria is satisfied, whether the prejudicial effect of the officer's questions or statements substantially outweighs their probative value. We note that this analysis is mostly consistent with the analysis suggested by our sister districts in People v. Theis , 2011 IL App (2d) 091080, ¶ 33, 357 Ill.Dec. 425, 963 N.E.2d 378, and People v. Hardimon , 2017 IL App (3d) 120772, ¶ 35, 413 Ill.Dec. 377, 77 N.E.3d 1184. In those cases, the Second and Third Districts indicated that statements of an investigating officer during a police interview or interrogation of the defendant are admissible when they are "necessary" to show the effect of the statement on the defendant or to explain the defendant's subsequent actions. Theis , 2011 IL App (2d) 091080, ¶ 33, 357 Ill.Dec. 425, 963 N.E.2d 378 ("[A]n out-of-court statement that is necessary to show its effect on the listener's mind or explain the listener's subsequent actions is not hearsay." (Emphasis added.) ); Hardimon , 2017 IL App (3d) 120772, ¶ 35, 413 Ill.Dec. 377, 77 N.E.3d 1184 ("Generally, statements made by an investigating officer during an interview with the suspected defendant are admissible if they are necessary to demonstrate the effect of the statement on the defendant or to explain the defendant's response." (Emphasis added.) ). However, to the extent that Theis and Hardimon impose a higher degree of probativeness regarding an officer's statements or questions through their use of the word "necessary," we respectfully disagree. We find that questions and statements by police officers during a defendant's interrogation may still possess probativeness where they are simply "helpful," although perhaps not essential or "necessary," to a jury's understanding of the defendant's responses or silence.

¶ 49 In this instance, the challenged statements were not hearsay, as they were not offered for the truth of the matters asserted. Rather, they were helpful to the jury in that they provided context for what occurred during the police interrogation and were useful in explaining defendant's statements and admissions. Defendant concedes that statements he made during his videotaped interrogation were relevant and admissible. Without the officers' statements and questions, the meaning and significance of defendant's answers, comments, behaviors-or even, at times, his silence-would be difficult to discern.

¶ 50 We note defendant cites several examples of the investigating officers' statements, which he maintains were improper and not helpful in providing context for his statements. We disagree. Defendant notes that Daniels commented on photographs of N.W. that showed "welts *** with scabs" that had "actually bled." This line of questioning from Daniels initially elicited a statement from defendant that N.W. had scratched himself; however, defendant ultimately described spanking N.W. with a "folded belt" and stated that maybe he used the "wrong type of belt." After defendant suggested N.W.'s injuries may have been created or enhanced by makeup, Daniels responded that the photos were taken at the hospital and "[d]efinitely not makeup." Defendant then agreed that the photographs "looked bad" and "looked like abuse."

¶ 51 Defendant next points to statements and questioning by the officers regarding whether defendant minimized his conduct and used an extension cord to discipline N.W. During that portion of the interrogation, defendant described spanking N.W., estimated how many "missed shots" landed on N.W.'s arm, stated he "made a mistake" and needed "counseling" on how to discipline, stated he used a blue belt made of "thin leather" when spanking N.W., stated he "maybe popped [N.W.] a little too hard," and demonstrated how he used a belt to "pop" N.W. Finally, during the portion of the interrogation in which defendant asserts Daniels "summarized" what eventually became the State's case, defendant agreed that the marks on N.W. were caused by "the belt" rather than something else.

¶ 52 Ultimately, the record does not support defendant's assertion on appeal that he "barely responded to the officers' aforementioned comments." Rather, he made statements indicating he was responsible for N.W.'s injuries and contradicting the defenses he presented at trial. As discussed, the officers' statements helped to demonstrate the effect their questioning had on defendant and to explain his subsequent statements.

¶ 53 To support his position that the officers' interrogation statements were irrelevant and unduly prejudicial, defendant relies heavily on the Third District's decision in Hardimon . However, we find that case is factually distinguishable.

¶ 54 In Hardimon , the defendant argued his trial counsel was ineffective for failing to file a motion to redact a video recording of the defendant's police interview. Id. ¶ 32. Specifically, the defendant maintained "that the final two-thirds of the video recording should have been redacted because it was irrelevant and more prejudicial than probative." Id. The appellate court agreed with the defendant's argument. Id. ¶ 37.

¶ 55 In so holding, the Third District described the first one-third of the defendant's interview with detectives as being "arguably relevant," in that it consisted of a conversation between the defendant and the detectives about the defendant's whereabouts and knowledge of the alleged offense-a shooting at a club. Id. ¶¶ 36-38. However, the court noted that the interview then shifted "from a conversational tone to accusations" and that, during the remaining two-thirds of the recording, the defendant adamantly and consistently denied the accusations against him. Id. ¶ 36. Despite the defendant's denials, the detectives "goaded" the defendant into confessing by suggesting he would receive more lenient treatment if he took responsibility, commenting that the evidence weighed heavily against the defendant and the prosecution could easily prevail at trial, commenting on possible media attention the defendant would receive, assuring the defendant they were not lying, indicating the defendant's failure to implicate himself would prevent him from seeing his son, and stating the defendant was going to jail for first degree murder. Id. The court concluded as follows:

"[The] comments from the interviewing officers served only to impermissibly bolster the State's case and inflame the passions of the jury. Because the defendant was adamant that he was not involved in the shooting and did not change his version of events throughout the interview, the final two-thirds of the interview had no probative value. Rather, this portion of the video was highly prejudicial and, at times, removed the finding of guilt from the province of the jury as the detectives conclusively stated that the defendant was guilty of murder." Id. ¶ 37.

¶ 56 Defendant likens his case to Hardimon by arguing he made no relevant statements or admissions after approximately the 18-minute mark of the interrogation video and, as a result, "the remaining 35 minutes or so" of the interrogation held no relevance or probative value. We disagree and find the record belies this assertion. Certainly, the initial portion of the interrogation video contains relevant admissions by defendant. However, thereafter, defendant continued to make relevant statements, implicating himself in the crime and contradicting the defenses he made at trial. Significantly, the interrogation video shows defendant admitted that he might have gone "overboard" in his discipline (24:54), admitted he caused the "circular marks" on N.W. with the "end of the belt" (29:17), estimated how many "missed shots" struck N.W.'s left arm (33:49), admitted he made a "mistake" (35:15), admitted that he spanked N.W. with a blue belt made of "thin leather" (35:40), stated he might have "popped" N.W. "too hard" (37:40), admitted "most" of the marks on N.W. were from "being spanked" (39:50), described how N.W. received welts on the inside of his leg (41:10), and admitted that the injuries to N.W. were inflicted at "different times" (44:30).

¶ 57 In Hardimon , the officers' statements amounted to persistent accusations in the face of the defendant's equally persistent denials. The statements, therefore, held no probative value and were not helpful to the trier of fact. Unlike in Hardimon , defendant in this case, continued to make incriminating statements that held probative value. As a result, Hardimon is not dispositive of the issue presented here and does not warrant a finding that the final "35 minutes or so" of the interrogation video should have been excluded from the evidence.

¶ 58 As indicated, defendant also argues that the officers' videotaped statements constituted improper lay witness opinions on defendant's credibility and the strength of the State's case. However, our supreme court has held that statements of past opinions, rather than present ones, do not constitute improper lay opinion testimony. Hanson , 238 Ill. 2d at 101, 345 Ill.Dec. 395, 939 N.E.2d 238 ; see also People v. Moore , 2012 IL App (1st) 100857, ¶ 52, 358 Ill.Dec. 254, 964 N.E.2d 1276 (holding that where an officer's statement "is not a current comment on the defendant's credibility [citation], the police accusations may be seen as a standard interrogation tactic, rather than an improper opinion on [the defendant's] credibility"). In this instance, the officers' statements-recorded on the interrogation video-were not testimony. Moreover, defendant has failed to point to any statements of present opinion from the investigating officers.

¶ 59 Under our analysis as set forth above, because the officers' statements and questions during defendant's interrogation were helpful to the jury so as to place defendant's statements (and his silence) into context and because their probative value outweighed their prejudicial effect, we find they were properly admitted.

¶ 60 Finally, we note that, here, defendant argues only first-prong plain error. In such cases, "a reviewing court must decide whether the defendant has shown that the evidence was so closely balanced the error alone severely threatened to tip the scales of justice." Sebby , 2017 IL 119445, ¶ 51, 417 Ill.Dec. 756, 89 N.E.3d 675. In this instance, even if we were to find that clear and obvious error occurred, defendant cannot otherwise establish first-prong plain error. In other words, the evidence at defendant's trial was not closely balanced; rather, the State presented substantial evidence of his guilt.

¶ 61 As stated, defendant acknowledges that his own statements in the interrogation video were properly admitted against him. During the interrogation, defendant admitted spanking two-year-old N.W. with a blue belt made of "thin leather" on his bare buttocks. N.W. "squirmed" or moved around during spankings, which caused defendant to strike N.W.'s arm, hand, and legs. Defendant admitted that his spankings caused "welts" and "circular marks" on N.W.'s body. When shown photographs of the marks on N.W., defendant admitted that spanking caused "most" of the marks. He also acknowledged that the marks or injuries occurred at "different times," that he went "overboard" in his discipline, and that N.W.'s injuries "looked bad."

¶ 62 The State also presented several photographs depicting N.W.'s injuries, including photographs of his arm, back, and legs. The photographs showed welts or circular marks on N.W.'s body, some of which appeared to have bled and were scabbed over. Dr. Leon testified N.W.'s injuries consisted of bruising and what appeared to be "belt marks." He estimated the injuries were inflicted "within a few days" and opined they were "consistent with being whipped with a cord or a belt."

¶ 63 Although defendant attempted to show that N.W.'s injuries were the result of a car accident, caused by Laura, or the result of reasonable discipline, his videotaped statements contradicted those arguments. Further, testimony from defendant's own witnesses regarding N.W.'s car accident injuries varied greatly. The only real support for defendant's argument that N.W.'s injuries were the result of the car accident came from defendant's father, Luther. However, Luther's testimony was contradicted by defendant's other witnesses who either observed no injuries to N.W. after the car accident or only minor injuries that were not consistent with the photographic evidence. Additionally, Lundy, the officer who investigated the car accident, also contradicted Luther's testimony, indicating N.W. had "no visible injuries" following the accident.

¶ 64 Contrary to defendant's assertions, evidence of his guilt was strong and not closely balanced. As a result, he cannot establish that the error he alleges in the admission of the officers' statements "alone severely threatened to tip the scales of justice," and he has failed to demonstrate plain error.

¶ 65 B. The State's Impeachment of a Defense Witness

¶ 66 On appeal, defendant also argues the State improperly impeached Luther and, as a result, misled the jury about Luther's prior statement. However, defendant also failed to preserve this issue for appellate review. Again, he maintains that this court may excuse his forfeiture because the alleged error was clear or obvious and the evidence was closely balanced. For the reasons discussed above, the evidence presented was not closely balanced. Rather, the State presented substantial evidence of defendant's guilt. Therefore, even if we assume that a clear or obvious error occurred with respect to the State's impeachment of Luther, defendant cannot demonstrate first-prong plain error.

¶ 67 III. CONCLUSION

¶ 68 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 69 Affirmed.

Justices Steigmann and DeArmond concurred in the judgment and opinion.