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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Trent HAMERLINCK, Defendant-Appellant.
    No. 1-15-2759
    Appellate Court of Illinois, First District, FOURTH DIVISION.
    Opinion filed March 29, 2018
    Michael J. Pelletier, Patricia Mysza, and Benjamin Wimmer, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Sari London, and Christine Cook, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 Defendant Trent Hamerlinck was convicted after a bench trial of two counts of aggravated driving under the influence of alcohol (DUI). The two counts charged different minimum levels of blood-alcohol content (BAC). After considering factors in aggravation and mitigation including defendant's four prior DUI convictions, the trial court sentenced him to two concurrent 5-year sentences with the Illinois Department of Corrections (IDOC).

¶ 2 On this appeal, defendant claims, first, that the trial court erred in admitting his hospital records as evidence of his BAC level. Although defendant concedes on appeal that he failed to raise this issue in the court below and thus forfeited this issue for our review, he asks us to review the issue under the plain error doctrine, which permits a reviewing court to review unpreserved errors under certain circumstances. People v. Piatkowski , 225 Ill. 2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). However, as we explain in more detail below, we do not find this claim persuasive.

¶ 3 Second, defendant claims, and the State agrees, that his aggravated DUI convictions violate the one act, one crime rule since they are based on the same physical act of driving. People v. Artis , 232 Ill. 2d 156, 165, 327 Ill.Dec. 556, 902 N.E.2d 677 (2009) ("Multiple convictions are improper if they are based on precisely the same physical act."). Count I charged a BAC level of over 0.08, while count III charged a BAC level of over 0.16. Thus, we vacate his conviction and sentence on count I. In re Samantha V. , 234 Ill. 2d 359, 375, 334 Ill.Dec. 661, 917 N.E.2d 487 (2009) (the trial court violated the one act, one crime rule when it found defendant guilty of two counts of aggravated battery based on the same battery). Neither defendant nor the State asks us to remand for resentencing, so we do not order it.

¶ 4 For the following reasons, we affirm defendant's conviction and sentence on count III for aggravated DUI with a BAC level of over 0.16.

¶ 5 BACKGROUND

¶ 6 Since the only issue on appeal concerns the admission of defendant's hospital records as proof of his BAC level, we focus on the facts surrounding this single issue.

¶ 7 This case arises from a motor vehicle accident at the intersection of Dempster Street and Shermer Road in Morton Grove at 11:30 p.m. on July 5, 2012. The collision occurred between a silver Lexus and a blue Nissan Rogue. Although defendant argued in the court below that he was a passenger in the Lexus rather than its driver, he does not raise that issue again on appeal. Irina Tsyrkina, the driver of the Nissan, sustained injuries to her legs as a result of the accident. After the accident, defendant was charged with multiple counts of driving while intoxicated and driving on a revoked license.

¶ 8 Prior to trial, the State filed a motion in limine asking the trial court to take judicial notice of several facts, specified below. On the record, the prosecutor stated that he had provided a copy of the State's motion to defense counsel, who confirmed receipt. Defense counsel added, "there is no objection to that, Judge." The trial court stated, "So the Court will take judicial of that as an agreement by the parties as well."

¶ 9 The State's motion stated in relevant part:

"2. Defendant's blood was taken at Lutheran General Hospital Emergency Room on July 6, 2012.
3. The People expect that the evidence will show that defendant's ethanol in serum blood was 306 milligrams per deciliter.
4. Pursuant to the Illinois Administrative Code and People v. [Olsen] Olson , 388 Ill. App. 3d 704[ 328 Ill.Dec. 118, 903 N.E.2d 778] (2nd Dist. 2009), the People ask this Court to take judicial notice of the conversion of serum blood to whole blood. Section 1286.40 of chapter 20 of the Administrative Code instructs that '[t]he blood serum plasma alcohol concentration result will be divided by 1.18 to obtain a whole blood equivalent.' 20 Ill. Adm Code Section 1286.40.
5. Using the serum to whole blood conversion described in the Administrative Code, the People ask this Court to take judicial notice that defendant's whole blood equivalent result is .259 grams per deciliter.
WHEREFORE, the People request that this Honorable Court, pursuant to our higher court's rulings, take judicial notice of the converted whole blood amount at trial."

Thus, per paragraph 5, the State asked the trial court "to take judicial notice that defendant's" ethanol in whole blood was ".259 grams per deciliter," and the trial court took judicial notice and found that it was an agreement between the parties as well.

¶ 10 At the start of the bench trial, the prosecutor stated in its opening, without objection, that defendant had his blood drawn at the hospital immediately after the accident and the result showed a 0.259 BAC. In his opening, defense counsel argued primarily that the State lacked proof that defendant was the driver, as opposed to a passenger, of the Lexus. Defense counsel further stated that "[t]he rest is going to be evidence of what examination was conducted on our client, if and when a blood draw was drawn, if it was drawn properly."

¶ 11 Ralph Nartatez testified that he was a registered nurse and had been employed in the emergency room of Lutheran General Hospital for 11 years. In the early morning hours of July 6, 2012, when defendant was admitted, Nartatez was "the charting nurse" who, in fact, documented his treatment. After Nartatez identified defendant in court, he testified that the records would aid his testimony in recalling "the chain" of events. The prosecutor then moved to admit defendant's medical records as a business record, which were marked as People's Exhibit No. 1. The trial court asked defense counsel, "Any objection?" Counsel replied, "Judge, no. I believe the foundation was laid." The trial court then stated, "Very well. Okay. They are so admitted."

¶ 12 Nartatez testified that, after defendant was admitted, he noticed defendant had a strong odor of alcohol on his breath and his speech was slurred. Defendant admitted consuming Percocet. Nartatez testified that a treating doctor ordered a blood draw done, and Nartatez was present when Kim Conway Cisneros drew the blood from defendant. Nartatez testified that he observed Cisneros "label it," which included recording the date and time. Cisneros then sent it to a lab in the hospital by means of "a tube station." Nartatez testified, without objection, that the results of defendant's blood test were "memorialized and recorded" in his medical records, specifically, in People's Exhibit No. 3, which was page 63 of the medical records already admitted as part of People's Exhibit No. 1.

¶ 13 People's Exhibit No. 3, or page 63, is a continuation from page 62 of a list of "lab results" labeled with the following date and time: "07/06/12 00.20." Page 63 contains defendant's name, sex, and date of birth and states, among other things, "Alcohol, Serum 306 mg/dL."

¶ 14 Nartatez testified as follows concerning People's Exhibit No. 3, and the parties and the court also discussed the scope of the prior stipulation. Since it is primarily the admission of People's Exhibit No. 3 that defendant contests on appeal, we provide Nartatez's testimony concerning it:

"ASSISTANT STATE'S ATTORNEY [ (ASA) ]: I'm going to show you what has been marked as People's Exhibit 3. What is that?
NARTATEZ: That is the result of the serum alcohol.
* * *
[ASA]: And based upon the testing, what was the alcohol concentration of the blood sample that the defendant gave on July 6th of 2012 in terms of grams per alcohol per 100 millimeters of blood.
NARTATEZ: 306.
* * *
[ASA]: Your Honor, I would ask that-People's 1 has already been admitted into evidence, which is the medical records. I would ask that People's 3 be put in as just the lab, which is part of People's 1.
THE COURT: Any objection?
DEFENSE COUNSEL: Judge, I object on foundational grounds at this point, yes, I do, Judge. If I could be heard.
THE COURT: You can be heard.
DEFENSE COUNSEL: And, again, we could just clarify this. The result that counsel asked was in millimeters. That is not the case in this-this result is not entered in millimeters, Judge.
[ASA]: I'll rephrase, Judge. I apologize.
DEFENSE COUNSEL: No, that's all right. I mean, I just want to do this-
THE COURT: That's a proper objection. That's exactly right. Thank you.
DEFENSE COUNSEL: I have one more as well, but go ahead.
[ASA]: Let me just rephrase. It was in terms of milligrams?
NARTATEZ: Yes.
[ASA]: Is that correct?
NARTATEZ: Yes, 306.
DEFENSE COUNSEL: My second-I'm sorry?
NARTATEZ: I'm sorry. 306.
DEFENSE COUNSEL: What? 306 what? Milligrams or what other measure? Do you know?
NARTATEZ: Milligrams.
DEFENSE COUNSEL: I object on foundational grounds. That is absolutely foundationally not responsible, Judge, and as such should not be admitted.
[ASA]: Judge, if I may have a moment.
THE COURT: Well, the law-according to the law, requires it recorded as grams of alcohol per 100 millimeters of blood.
DEFENSE COUNSEL: Judge, but that's not the measurement that-
THE COURT: Right.
DEFENSE COUNSEL: Or the-that's not the result that the hospital takes. It is not taken in millimeters, and I haven't heard the magic words yet.
THE COURT: That's what I'm wanting to hear.
* * *
[ASA]: I'm showing you what is People's 3. Can you tell the Court specifically what the result was?
NARTATEZ: 306 milligrams.
[ASA]: Per what?
NARTATEZ: Per-I don't know what DL is. I'll be honest with you.
[ASA]: Would that be deciliter or are you-
NARTATEZ: I am not sure. I'm sorry. I'll be honest. "

¶ 15 The parties then discussed the prior stipulation. This particular discussion eventually ended, after a 5-minute break, with defense counsel withdrawing any objection that he had:

"DEFENSE COUNSEL: Again, I'm going to renew my objection, Judge. He just answered he doesn't know. And based on foundation-you don't have the proper tools to make-even with judicial notice, you cannot make that-
THE COURT: I'm not allowing anything in at this moment. You don't need to continue arguing. * * *
[ASA]: Judge, I-what I can do is we can commence and continue until tomorrow, and I'll bring a doctor in for that result if that's what we need to do. * * *
* * *
[ASA]: Judge, the medical records-just for-the medical records are in. They've already been admitted into evidence with no objection. There's also a stipulation with no objection as to the conversion of that BAC or that serum blood that was in the medical records and the-what the conversion is. There's already no objection."
DEFENSE COUNSEL: Judge, there was no objection to the conversion ratio that the Court can apply in determining his blood alcohol serum.
[ASA]: Judge, on No. 3, which counsel stipulated to, it says the People expect the evidence will show that defendant's ethanol in serum blood was 300 milligrams per deciliter. There was a stipulation to that.
DEFENSE COUNSEL: I misunderstood that then, Judge. I'm sorry. I'm very sorry. I didn't read your-."

¶ 16 After defense counsel admitted that he had not read the previously entered stipulation, the trial court sustained his objection and adjourned for five minutes. When the proceedings resumed, Nartatez testified as follows:

"[ASA]: Sir, I'm showing you People's Exhibit [No.] 3. Can you read what the alcohol sum is?
NARTATEZ: Alcohol serum, 306 milligrams per deciliter
[ASA]: Okay. And DL is commonly what's known as deciliter; is that correct?
NARTATEZ: Yes.
DEFENSE COUNSEL: Judge, I'll withdraw my-
THE COURT: Objection to that?
DEFENSE COUNSEL: Yeah."

¶ 17 Defense counsel stated that he wanted to cross-examine the witness concerning People's Exhibit No. 3, and the trial court admitted it subject to cross-examination. On cross, however, defense counsel did not ask any questions about the blood draw. On redirect, the prosecutor clarified that Conway Cisneros, who drew defendant's blood, was a nurse. The prosecutor also asked, without objection:

"[ASA]: And at the same time when the defendant said he wasn't the driver he also said that he had not consumed any alcohol; isn't that correct?
NARTATEZ: Yes.
[ASA]: And, in fact, we know that that is not correct because of his blood serum?
NARTATEZ: Result, yes."

¶ 18 At the end of the bench trial, the State confirmed with the trial court that People's Exhibit Nos. 1 and 3 had "already been admitted into evidence," and the trial court confirmed that they had been admitted. The prosecutor then stated, without objection from defense counsel, "Judge, there was that stipulation between the parties. I would also ask to read that into the record." After the trial court stated, "[g]o ahead," the prosecutor read the document that was substantially quoted above. Supra ¶ 9.

¶ 19 After hearing the document read into the record, the trial court ruled as follows:

"THE COURT: Okay. Based upon the-there was no objection to the motion at least by defense previously following-the Court can follow the administrative code and take judicial notice. Based upon the testimony that has been received regarding the grams per deciliter as to that of the blood serum plasma, they can take judicial notice that the blood alcohol concentration of the whole blood equivalent result would be a .259 grams."

¶ 20 After People's Exhibits Nos. 1 and 3 were admitted into evidence, and the stipulation was read into the record without objection, and the trial court agreed to take judicial notice, the State rested.

¶ 21 After the State rested, the defense moved for a directed finding, arguing:

"DEFENSE COUNSEL: Your Honor, the State has presented several witnesses. And so far, we have heard testimony that my client, [defendant], was tested at a hospital and his blood alcohol was a 2.50, a little bit more.
THE COURT: Right.
DEFENSE COUNSEL: All well and good, Judge. What the State has not done, which is an essential component, which is an element to the offense, is to prove that my client, while he had this blood alcohol, was driving or operating either through constructive possession or actual physical control that could be attributed by evidence, was driving with a BAC at that level. The State has failed to do that. The State has utterly failed. They have not brought any credible, and I repeat, any credible evidence whatsoever which beyond a reasonable doubt places my client behind the wheel of a car." (Emphases added.)

¶ 22 Defense counsel further argued "they were able to establish my client had a breath alcohol concentration over the legal limit, but they did not, again, did not, establish a prima facie case" that he was the driver. (Emphasis added.)

¶ 23 After the trial court denied defendant's motion, the defense called one witness, Mohammed Rogaria, a taxi driver who testified that he had observed the accident three years earlier and called 911. On direct, Rogaria testified that he observed two people in the Lexus. However, he also testified that he could not observe the driver and that he did not know whether there were more than two people in the Lexus. On cross, Rogaria testified that the passenger and the driver switched seats after the accident. However, he could not identify either the driver or the passenger because he did not observe their faces. On redirect, he testified that he observed only one person, outside of the Lexus, walking from the passenger's side to the driver's side. On recross, he again testified that he observed only one person exiting the Lexus and that this person exited from the passenger side.

¶ 24 In rebuttal, the State called Detective Dennis Johnson who testified that, immediately after the accident, he interviewed Rogaria who identified defendant as the driver of the Lexus and stated that defendant had exited the driver's side.

¶ 25 The State waived its initial closing argument, and the defense proceeded to its closing, in which the defense conceded that the State had proved defendant's BAC level. In closing, defense counsel expressly stated that this fact was not in dispute: "The State presented evidence showing that my client had a BAC over the legal limit. That's not a dispute, Judge." Defense counsel argued that the State failed to prove beyond a reasonable doubt that defendant was the driver, as opposed to the passenger, of the Lexus.

¶ 26 During its rebuttal argument, the State argued, "Judge, I'm not going to go through the BAC. We know his blood was .259. We know he was under the influence because clearly the issue is driving."

¶ 27 After hearing argument from both sides, the trial court spent 12 pages reviewing the evidence and articulating its factual findings. As to defendant's BAC level, the trial court noted defendant's concession on that issue, finding: "And of course, there's no question regarding intoxication. That's not an issue as defense concedes. With a BAC of .259, that's more than three times what the legal limit is in Illinois to be driving." (Emphasis added.) Defense counsel did not object to the court's statement about the defense's concession, either when the trial court made the statement or at any time thereafter.

¶ 28 Defendant was then convicted of multiple counts of driving while intoxicated and driving with a revoked license. Specifically, the trial court found defendant guilty of (1) count I, which charged him with having a BAC level of 0.08 or more while being in control of a motor vehicle and having four prior DUI convictions; (2) count III, which charged the same as count I, but with a BAC level of 0.16 or more; (3) count VI, which charged him with having a revoked or suspended license and a BAC level of 0.08 or more while being in control of a motor vehicle; and (4) count VII, which charged the same, but without charging a specific BAC level and instead alleging that he was under the influence of alcohol.

¶ 29 In his posttrial motion filed on July 31, 2015, defendant raised no issues concerning either the admission of his hospital records or the sufficiency of the State's proof of his BAC level. The motion argued only that the State had failed to prove that defendant was the driver, as opposed to the passenger, of the Lexus.

¶ 30 In his amended posttrial motion, filed on August 10, 2015, defendant again raised the issue that the State had failed to prove he was the driver, arguing:

"No reasonable inference of guilt could be drawn by this court from the People's evidence at the close of their case The only reasonable inference that could have been drawn from the People's case was that the Defendant was a passenger in a vehicle involved in an accident and was intoxicated ." (Emphasis added.)

¶ 31 Defendant's second amended posttrial motion, filed on August 24, 2015, contained the same quote (quoted in the paragraph above) and also argued that the State had failed to prove he was the driver.

¶ 32 On August 25, 2015, the trial court denied defendant's posttrial motion. The parties and the court agreed that the applicable sentencing range was 4 to 15 years. After listening to factors in aggravation and mitigation, the trial court sentenced defendant at the low end of the range, specifically to five years. After announcing the sentence, the trial court merged counts VI and VII into counts I and III. Thus, the two remaining counts were: count I, which charged him with having a BAC level of 0.08 or more while being in control of a motor vehicle and having four prior DUI convictions; and count III, which charged the same, but with a BAC level of 0.16 or more.

¶ 33 The trial court did not specify on the record that it was issuing two 5-year sentences or that the sentences were concurrent. However, the mittimus, entered on the same day, stated that the trial court entered two concurrent 5-year sentences: one 5-year sentence on count I and one 5-year sentence on count III to run concurrently with the 5-year sentence on count I.

¶ 34 Although both parties ask us to vacate defendant's conviction on count I under the one-act, one-crime rule, neither party asks us to remand for resentencing. Thus, there are no issues raised on appeal concerning defendant's sentence or the sentencing proceeding. A notice of appeal was filed September 14, 2015, and this timely appeal followed.

¶ 35 ANALYSIS

¶ 36 On this appeal, defendant claims, first, that the trial court erred in admitting his hospital records as evidence of his BAC level and that this error rises to the level of plain error. Piatkowski , 225 Ill. 2d at 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (discussing when a reviewing court may consider errors which a defendant failed to raise in the court below). For the reasons discussed below, we do not find this claim persuasive.

¶ 37 Second, defendant claims, and the State agrees, that his two aggravated DUI convictions violate the one act, one crime rule since they were based on "the same physical act" of driving. Artis , 232 Ill. 2d at 165, 327 Ill.Dec. 556, 902 N.E.2d 677. Thus, we vacate his conviction and sentence on count I, which charged a BAC level of over 0.08.

In re Samantha V. , 234 Ill. 2d at 375, 334 Ill.Dec. 661, 917 N.E.2d 487(the trial court violated the one act, one crime rule when it found defendant guilty of two counts of aggravated battery based on the same battery).

¶ 38 I. Standard of Review

¶ 39 Defendant's first claim, and the only claim disputed on this appeal, is that the trial court committed plain error by admitting his hospital records as evidence of his BAC level. While de novo review applies to an evidentiary question if that question concerns how to correctly interpret a rule of law (e.g. , People v. Caffey , 205 Ill. 2d 52, 89, 275 Ill.Dec. 390, 792 N.E.2d 1163 (2001) ), the admission of evidence is generally within the sound discretion of the trial court, and a reviewing court will generally not disturb a trial court's evidentiary ruling absent an abuse of that discretion. E.g. , People v. Romanowski , 2016 IL App (1st) 142360, ¶ 21, 406 Ill.Dec. 731, 61 N.E.3d 999. In the case at bar, there is no dispute about a rule of law, so we apply an abuse-of-discretion standard of review. See generally People v. Drake , 2017 IL App (1st) 142882, ¶¶ 52-53, --- Ill.Dec.----, --- N.E.3d ---- (Gordon, J., concurring in part and dissenting in part). An abuse of discretion occurs only when the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted by the trial court. In re Marriage of Heroy , 2017 IL 120205, ¶ 24, 417 Ill.Dec. 648, 89 N.E.3d 296 ; People v. Patrick , 233 Ill. 2d 62, 68, 330 Ill.Dec. 149, 908 N.E.2d 1 (2009).

¶ 40 II. Chain of Custody

¶ 41 Specifically, defendant claims on appeal that the State failed to establish a sufficient chain of custody that the blood tested was his blood.

¶ 42 A claim that the State presented an incomplete chain of custody is not a challenge to the sufficiency of the evidence but to its foundation and thus is subject to forfeiture. People v. Banks , 2016 IL App (1st) 131009, ¶ 68, 409 Ill.Dec. 230, 67 N.E.3d 442 (citing People v. Woods , 214 Ill. 2d 455, 471, 293 Ill.Dec. 277, 828 N.E.2d 247 (2005) ). The application of forfeiture to such claims is particularly appropriate because a defendant's failure to object to the foundation at trial deprives the State of its opportunity to cure any deficiency in the foundation. Banks , 2016 IL App (1st) 131009, ¶ 71, 409 Ill.Dec. 230, 67 N.E.3d 442 (citing Woods , 214 Ill. 2d at 470, 293 Ill.Dec. 277, 828 N.E.2d 247 ). For example, in the case at bar, when defense counsel objected on "foundation" grounds to People's Exhibit No. 3, which stated defendant's BAC level, the prosecutor offered to "commence and continue until tomorrow, and I'll bring a doctor in for that result if that's what we need to do." However, the doctor's testimony was rendered unnecessary when defense counsel subsequently stated that he withdrew the objection.

¶ 43 In the case at bar, defendant concedes that his claim is forfeited. Failure to either object to the error at trial or raise the error in a posttrial motion results in forfeiture. People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675 ; People v. Belknap , 2014 IL 117094, ¶ 66, 387 Ill.Dec. 633, 23 N.E.3d 325 (in order to preserve a purported error for consideration by a reviewing court, a defendant must object to the error at trial and raise the error in a posttrial motion).

¶ 44 However, even when a defendant has failed to preserve an alleged error for our review, we may still review the issue for plain error. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675 ; Piatkowski , 225 Ill. 2d at 564, 312 Ill.Dec. 338, 870 N.E.2d 403 ; Ill. S. Ct. R. 615(a) ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court."). The plain error doctrine allows a reviewing court to consider unpreserved error when (1) 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) 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. Piatkowski , 225 Ill. 2d at 565, 312 Ill.Dec. 338, 870 N.E.2d 403. On the instant appeal, defendant claims plain error only under the first, or closely balanced, prong.

¶ 45 In a plain error analysis, it is the defendant who bears the burden of persuasion. Sebby , 2017 IL 119445, ¶¶ 51-52, 417 Ill.Dec. 756, 89 N.E.3d 675 ; see also Woods , 214 Ill. 2d at 471, 293 Ill.Dec. 277, 828 N.E.2d 247. A chain-of-custody challenge can be reviewed for plain error only "in the rare case" of "a complete breakdown in the chain." Banks , 2016 IL App (1st) 131009, ¶ 68, 409 Ill.Dec. 230, 67 N.E.3d 442 ; People v. Alsup , 241 Ill. 2d 266, 275, 349 Ill.Dec. 921, 948 N.E.2d 24 (2011) (plain error occurs " '[w]hen there is a complete failure of proof , there is no link between the substance tested by the chemist and the substance recovered at the time of defendant's arrest' " (emphases in original) (quoting Woods , 214 Ill. 2d at 472, 293 Ill.Dec. 277, 828 N.E.2d 247 ) ). A complete breakdown occurs, for example, when " 'the inventory number or description of the recovered and tested items did not match,' " so that " 'there is no link between the substance tested by the chemist and the substance recovered at the time of the defendant's arrest.' " Banks , 2016 IL App (1st) 131009, ¶ 68, 409 Ill.Dec. 230, 67 N.E.3d 442 (quoting Woods , 214 Ill. 2d at 471-72, 293 Ill.Dec. 277, 828 N.E.2d 247 ). In the case at bar, defendant, who bears the burden of persuasion on this issue on appeal, argues that a complete breakdown occurred in this case (1) where the nurse testified that he observed blood being drawn from defendant and that it was sent to the hospital lab, but where the nurse did not follow it himself, and (2) where defendant's medical records contained defendant's name, as well as the date and time of the blood draw, and the nurse testified that he observed defendant's blood sample being labeled with the date and time, but the State presented no testimony about either a unique identifying number for the blood sample or the exact time of the blood draw.

¶ 46 Whether the defendant argues first or second prong error, "[t]he initial analytical step under either prong of the plain error doctrine is [to] determin[e] whether there was a clear or obvious error at trial." Sebby , 2017 IL 119445, ¶ 49, 417 Ill.Dec. 756, 89 N.E.3d 675 ; Piatkowski , 225 Ill. 2d at 565, 312 Ill.Dec. 338, 870 N.E.2d 403 ("the first step is to determine whether error occurred"). In the case at bar, the State argues that no clear or obvious error occurred because the defense acquiesced in the action now challenged on appeal. As we explain in more detail below, in light of the parties' stipulation and the defense's explicit and repeated concession, both accepted by the trial court, we cannot find any error on the part of the trial court in admitting People's Exhibit No. 3 as evidence of defendant's BAC level.

¶ 47 First, at the end of the trial and before the State rested, the prosecutor stated, without objection from defense counsel, "Judge, there was that stipulation between the parties. I would also ask to read that into the record." This stipulation stated, in relevant part, that "[d]efendant's blood was taken at Lutheran General Hospital Emergency Room on July 6, 2012," and it asked the trial court "to take judicial notice that defendant's whole blood equivalent result is .259 grams per deciliter." " 'A criminal defendant may waive, by stipulation, the need to prove all or part of the case that the State has brought against him.' " People v. Toliver , 2016 IL App (1st) 141064, ¶ 31, 407 Ill.Dec. 860, 64 N.E.3d 659 (quoting People v. Washington , 343 Ill. App. 3d 889, 900, 279 Ill.Dec. 368, 800 N.E.2d 436 (2003) ). By conceding an issue, "counsel demonstrated the intent of the defense to eliminate that issue from the case and focus on other aspects of the defense." Toliver , 2016 IL App (1st) 141064, ¶ 31, 407 Ill.Dec. 860, 64 N.E.3d 659 ; In re Gabriel W. , 2017 IL App (1st) 172120, ¶ 49, 420 Ill.Dec. 480, 97 N.E.3d 54 ("In short, by stipulating to" a fact, "defense counsel removed that issue from this case."); Woods , 214 Ill. 2d at 474-75, 293 Ill.Dec. 277, 828 N.E.2d 247 ("by stipulating to the chemist's report and not raising the chain of custody issue at trial," the defendant "affirmatively waived review"). In the case at bar, defendant eliminated the issue of defendant's BAC level from the case and focused on the issue of whether he was or was not the driver.

¶ 48 Second, the State argues that defendant also acquiesced in the admission of the medical records that he now challenges on appeal. When a party "procures, invites, or acquiesces" to a trial court's evidentiary ruling, even if the ruling is improper, he cannot contest the ruling on appeal. People v. Bush , 214 Ill. 2d 318, 332, 292 Ill.Dec. 926, 827 N.E.2d 455 (2005) ; People v. Harvey , 211 Ill. 2d 368, 386, 286 Ill.Dec. 124, 813 N.E.2d 181 (2004) ; Caffey , 205 Ill. 2d 52, 275 Ill.Dec. 390, 792 N.E.2d 1163. In the case at bar, there is no question that defendant acquiesced in the trial court, as we explain below.

¶ 49 In sum, the parties stipulated to and the trial court took judicial notice of defendant's BAC level. On appeal, defendant argues, in essence, that the stipulation and judicial notice were ambiguous. To the extent that they were ambiguous, defense counsel cleared up any possible ambiguity by conceding to the trial court-repeatedly-that the State had established his client's BAC level. For example, defense counsel argued during the bench trial, during his motion for a directed finding, that defendant "was tested at a hospital and his blood alcohol was a 2.50, a little bit more ." (Emphasis added.) The trial court immediately stated, "[r]ight," thereby indicating its acceptance of defendant's concession. Defense counsel agreed, immediately responding, "All well and good, Judge." To the extent that there was any misunderstanding about what the defense had just conceded, defense counsel repeated in closing, "The State presented evidence showing that my client had a BAC over the legal limit. That's not a dispute, Judge." Later, in its factual findings, the trial court noted defendant's concession on that issue: "And of course, there's no question regarding intoxication. That's not an issue as defense concedes ." (Emphasis added.)

¶ 50 Thus, in the case at bar, we have (1) a stipulation between the parties, (2) judicial notice taken by the trial court, as requested, and (3) a concession tendered by defendant and accepted by the trial court concerning the sole fact that defendant seeks to challenge on appeal, namely, his BAC level. As a result, we cannot find any error by the trial court in admitting the medical records which stated his BAC level. Thus, there can be no plain error to review. Sebby , 2017 IL 119445, ¶ 49, 417 Ill.Dec. 756, 89 N.E.3d 675 ("[t]he initial analytical step under * * * the plain error doctrine is [to] determin[e] whether there was a clear or obvious error at trial").

¶ 51 III. One Act, One Crime Rule

¶ 52 Second, defendant claims, and the State agrees, that his aggravated DUI convictions violate the one act, one crime rule, since they are based on the same physical act of driving. People v. Artis , 232 Ill. 2d 156, 165, 327 Ill.Dec. 556, 902 N.E.2d 677 (2009) ("Multiple convictions are improper if they are based on precisely the same physical act.").

¶ 53 The application of the one act, one crime rule is a question of law that we review de novo . People v. Johnson , 237 Ill. 2d 81, 97, 340 Ill.Dec. 168, 927 N.E.2d 1179 (2010) ; People v. Melecio , 2017 IL App (1st) 141434, ¶ 64, 418 Ill.Dec. 40, 89 N.E.3d 874. De novo review means that we perform the same analysis a trial court would perform. Melecio , 2017 IL App (1st) 141434, ¶ 42, 418 Ill.Dec. 40, 89 N.E.3d 874.

¶ 54 Under the rule, a defendant may not be convicted of multiple offenses that are based upon precisely the same physical act. Johnson , 237 Ill. 2d at 97, 340 Ill.Dec. 168, 927 N.E.2d 1179 ; Melecio , 2017 IL App (1st) 141434, ¶ 65, 418 Ill.Dec. 40, 89 N.E.3d 874. For example, in In re Samantha V. , 234 Ill. 2d 359, 375-76, 334 Ill.Dec. 661, 917 N.E.2d 487 (2009), our supreme court vacated one finding of guilty, where the defendant had been charged with two counts of aggravated battery based on the same battery. See also Melecio , 2017 IL App (1st) 141434, ¶ 70, 418 Ill.Dec. 40, 89 N.E.3d 874.

¶ 55 If a defendant is convicted of two offenses based upon the same physical act, the conviction for the less serious offense must be vacated because it is error. Johnson , 237 Ill. 2d at 97, 340 Ill.Dec. 168, 927 N.E.2d 1179 ; Melecio , 2017 IL App (1st) 141434, ¶ 65, 418 Ill.Dec. 40, 89 N.E.3d 874. In the case at bar, count I charged a BAC level of over .08, while count III charged a BAC level of over .16 during the same physical act of driving. Since driving with a higher BAC level is more serious than driving with a lower BAC level, we vacate his conviction and sentence on count I. Neither defendant nor the State asks us to remand for resentencing, so we do not order it.

¶ 56 CONCLUSION

¶ 57 For the foregoing reasons, we vacate defendant's aggravated DUI conviction and sentence on count I, and we affirm both his aggravated DUI conviction on count III and his five-year sentence on count III.

¶ 58 Affirmed in part and vacated in part.

Presiding Justice Burke and Justice McBride concurred in the judgment and opinion.

      The State's motion, which contained the parties' agreement, was not listed in the table of contents at the back of defendant's appellate brief, was not discussed in defendant's statement of facts, and appeared out of chronological order in the record. The table of contents also failed to note the stipulation when it was read into the record by the prosecutor. The State's brief mentioned the document but without providing a record cite for the document or quoting from it. This court wants to assure the parties that it reads every single page of the record and thus will find documents, even if they are out of order, not listed, or not discussed.

      As we discuss in the next paragraph, the trial court later confirmed that People's Exhibit No. 3 was admitted.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Juan RAMOS, Defendant-Appellant.
    No. 1-15-1888
    Appellate Court of Illinois, First District, SIXTH DIVISION.
    March 30, 2018
    Michael J. Pelletier, Patricia Mysza, and Sharon Goot Nissim, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE DELORT delivered the judgment of the court, with opinion.

¶ 1 After a joint jury trial with co-defendant Saul Sandoval, defendant Juan Ramos was convicted of armed robbery with a firearm and sentenced to 29 years in prison. Critical to the State's case was historical cell site analysis (HCSA) evidence which was presented to the jury in the form of testimony from a detective. We find that this evidence was inadmissible hearsay and was prejudicial. We reverse defendant's conviction and remand for a new trial.

¶ 2 BACKGROUND

¶ 3 In June 2015, the State charged defendant by indictment with, among other things, one count of armed robbery. 720 ILCS 5/18-2(a)(2) (West 2014). The gist of the indictment was that defendant robbed Francisco Vivas of jewelry while brandishing a firearm. The case proceeded to a jury trial.

¶ 4 At trial, 71-year-old Francisco Vivas testified that on August 3, 2014, he went to Swap-O-Rama, a flea market located at 42nd Street and Ashland Avenue in Chicago, to sell jewelry. Around 4:30 p.m., Vivas left and drove to the Berwyn Fruit Market, a grocery store on Harlem Avenue in Berwyn, Illinois. To travel to the Berwyn Fruit Market from Swap-O-Rama, Vivas took Ashland Avenue to Interstate 55 (I-55), exited I-55 at Harlem Avenue, and proceeded north on Harlem Avenue until reaching the destination. After completing that stop, Vivas drove to Kathleen Snyder's house in Riverside, Illinois, some 1.5 miles away from the Berwyn Fruit Market, to drop off some jewelry.

¶ 5 When Vivas arrived at Snyder's house, two men approached him from behind and attacked him. One of the men pulled Vivas's shirt over his head, and the other took his car keys, opened his car, and removed several bags containing gold jewelry. At that point, Snyder came outside and saw that Vivas was under attack. Vivas heard Snyder yelling and saw one of the men point a gun at her and tell her to "shut up."

¶ 6 Kathleen Snyder testified that she saw Vivas pull into her driveway around 5:30 p.m. When she walked outside to greet him, she heard him saying "call the police" and saw a person, whom she later identified at trial as defendant, beating Vivas's head against one of her car's tires. Snyder also saw another man, whom she later identified at trial as Sandoval, a little further away "dancing around or something." Snyder testified that the attackers had t-shirts covering their faces like masks, so that only their eyes and the middle portion of their faces were visible. Snyder asked defendant and Sandoval what they were doing. In response, according to Snyder, Sandoval pointed a gun at Snyder and said, "[t]his doesn't concern you, bitch.' " They fled in a van shortly thereafter.

¶ 7 Two days later, Vivas and Snyder went to the police station to view a lineup. When the subjects were first presented, their faces were covered with t-shirts so that only their eyes and the middle portion of their faces were visible, similarly to how the attackers appeared during the robbery. However, Snyder told a police officer that one of the suspects had a goatee and asked that the suspects lower their masks. Snyder then saw that one of the men had a goatee. That man was defendant, whom Snyder informed the police was the person she saw assaulting Vivas. Snyder later identified Sandoval as the person who pulled a gun on her based on the fact that he had "goofy" eyes. Vivas did not make an identification because his head had been covered by his own shirt during much of the attack. However, on August 8, Vivas identified two pieces of jewelry-an earring and a bracelet-that the police recovered during their investigation which he claimed were taken during the robbery.

¶ 8 Detective Frank Lara testified that he worked for the Riverside police department and that he assisted with the robbery investigation. Detective Lara testified that he interviewed Snyder at her home. After that conversation, he explained that he "was looking for two male Hispanics" who had t-shirts wrapped around their heads and faces and "were between 5'8? and 5'10? and * * * had medium builds."

¶ 9 The following day, Detective Lara went to the Berwyn Fruit Market. There, he met with the store manager and viewed surveillance footage of the store's parking lot. The video showed that at 5 p.m., a white Acura driven by Vivas pulled into the lot and parked. Vivas exited his vehicle and entered the store. A silver SUV then drove down the parking aisle towards the store, passed Vivas's car, and entered the parking lot of an O'Reilly's Auto Shop located across the street, at which point the SUV parked. Twenty minutes later, Vivas returned to his car, left the parking lot, and began traveling North on Harlem Avenue. When Vivas passed O'Reilly's Auto Shop, the silver SUV exited the parking lot and began traveling north on Harlem Avenue.

¶ 10 Detective Lara checked the SUV's license plate number and learned that it was registered to Rene Abeja. That lead ultimately led Detective Lara to a residence at 4909 West 30th Street in Cicero, Illinois, where Detective Lara set up surveillance with another police unit. Detective Lara observed three people emerge from a house, walk into an alley, and load furniture and boxes into a white truck. Two of the individuals, whom Detective Lara later identified as defendant and Sandoval, were male Hispanics, between 5'8? and 5'10?, had medium builds, and had shirts wrapped around their heads. A short while later, Detective Lara observed the silver SUV which he had seen on the surveillance footage emerge from the alley, drive past Detective Lara's car, and park. As the SUV passed Detective Lara, he saw Abeja in the driver's seat. At that point, Detective Lara pulled behind the SUV, activated his emergency lights, and detained Abeja. At the same time, officers from the other surveillance unit went into the alley and detained defendant, Moya, and Sandoval. Custodial searches produced a credit card, cell phone, and a gold earring from defendant, and a cell phone from Sandoval.

¶ 11 On August 5, 2014, Detective Lara searched the SUV and recovered a clear necklace and a gold bracelet. Vivas identified the bracelet as belonging to him. Later in the investigation, Detective Lara went to Swap-O-Rama, where he met with the manager and viewed surveillance footage from August 3, 2014. That footage showed Vivas leave Swap-O-Rama around 4:30 p.m., get into his car, and leave traveling south on Ashland Avenue. Then, "within a minute or two," a silver SUV exited the parking lot and also began traveling south on Ashland Avenue. On cross-examination, Detective Lara testified that he was not able to identify the driver of the silver SUV or any of its passengers.

¶ 12 Detective James Lazansky testified that he was a detective with the Riverside police department. As part of the robbery investigation, Detective Lazansky served a search warrant on T-Mobile company seeking historical cell site location data for the cell phones recovered from defendant and Sandoval. Detective Lazansky explained to the jury that "cell tower location history is when you use your cell phone, it pings on a certain tower. So it could be within a short distance of where your phone is hitting." He elaborated: "[w]herever you travel, you're going to go from one tower to another tower to another tower, and your cell phone is going to ping on that certain tower in the area that you're at."

¶ 13 Detective Lazansky then explained that in response to the warrant, "T-Mobile gave us a spreadsheet of all the latitudes and longitudes and dates and times of where the cell phone towers were hitting." Detective Lazansky stated that the T-Mobile records for defendant's phone did not contain any cell tower history for August 3, 2014. However, he testified that the cell tower history for Sandoval's phone "dictated the exact location of Swap-O-Rama and followed the victim exactly how he showed us going down I-55. It kept pinging down I-55 to Harlem Avenue. It pinged at Harlem Avenue; and actually where the crime occurred, it also pinged there." Detective Lazansky explained that a ping "[b]asically * * * gives us the latitude and longitude and then you punch in the latitude and longitude into Google Earth, which gives you the exact geographic location of where the phone is hitting on the cell tower."

¶ 14 During defendant's closing argument, defense counsel attempted to use a copy of the trial transcript and notes that he had written on the transcript. When the court became aware of this, it admonished defense counsel in the presence of the jury to put the transcript down. During an ensuing sidebar conference, the court explained, "[y]ou can argue whatever you wish, but no one is to refer to the transcript because it's never been introduced, and it's never been authenticated, and the court reporter's notes have not been requested to be authenticated by anyone."

¶ 15 The jury found defendant guilty of armed robbery and the court imposed a sentence of 29 years in prison. This appeal followed.

¶ 16 ANALYSIS

¶ 17 Defendant presents nine issues for our review which span the entire trial, from jury selection to sentencing. Defendant argues that: (1) the jury received improper Rule 431(b) admonishments (see Ill. S. Ct. R. 431(b) ), (2) his identification was the product of a suggestive lineup, (3) his identification was unreliable (4) the State failed to prove that a gun was used during the crime, (5) an inculpatory text message found on Sandoval's phone was admitted without proper authentication, (6) the State's HCSA evidence was improper because it was not introduced through a qualified expert, and (7) his sentence was excessive. We need not consider these arguments, however, because two of defendant's other claims are dispositive: (1) that Detective Lazansky's HCSA testimony was inadmissible hearsay and (2) the circuit court improperly restricted defense counsel during closing argument.

¶ 18 We begin with the hearsay argument. Defendant argues that Detective Lazansky's testimony was testimonial hearsay because it was an embodiment of the T-Mobile report, which the State failed to authenticate as admissible hearsay pursuant to the business records exception. See Ill. R. Evid. 803(6) (eff. Jan. 1, 2011). He thus concludes that the introduction of this evidence violated his sixth amendment right to confrontation.

¶ 19 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. Ill. R. Evid. 801 (eff. Jan. 1, 2011). At trial, Detective Lazansky told the jury that the information contained in the T-Mobile report "dictated the exact location of the Swap-O-Rama and followed the victim exactly how he showed us going down I-55. It kept pinging down I-55 to Harlem Avenue. It pinged at Harlem Avenue; and actually where the crime occurred, it also pinged there." Detective Lazansky explained that the ping information existed in the form of latitude and longitude coordinates, and he explained that he arrived at his conclusion about the phone's movements by plugging the "ping" information into Google Earth to create a map detailing how the phone traveled on August 3, 2014. While it is unclear whether this map was ever shown to the jury, translating the report's raw coordinate data into points on a map was the keystone of Detective Lazansky's testimony. Without the reports, there would be no coordinates; without the coordinates there would be nothing to plug into Google Earth and thus no map; and without a map he would have nothing tell the jury about where Sandoval's phone traveled on August 3.

¶ 20 T-Mobile, which authored the document, was a declarant, and the data showing which towers Sandoval's cell phone pinged, and at what times, was an out-of-court statement. And the only reason Detective Lazansky conveyed this information to the jury was for its truth-that is, to convince the jury that Sandoval's phone followed Vivas around all day on August 3, 2014. That fact is borne out by Detective Lazansky's testimony, which meticulously detailed the cell phone's path of travel, and in the State's closing argument, in which the prosecutor emphasized, " we * * * know from Saul Sandoval's phone that he was at the Swap-O-Rama at the same time that Mr. Vivas was because we know from his phone that his phone took the same path that Mr. Vivas took * * *."

¶ 21 It makes no difference that Detective Lazansky used Google Earth to convert the raw coordinate data from the T-Mobile report, which was in code and would have been meaningless to the jury, into a format that was actually comprehensible. Information that is hearsay when presented as numerals in a spreadsheet is still hearsay when those numerals are converted to waypoints on a map, and it remains hearsay when that information is conveyed to a jury.

¶ 22 Of course, our finding that Detective Lazansky's HCSA testimony was hearsay does not itself settle the matter, since not all hearsay is inadmissible. Phone records of the sort at issue here are frequently admissible hearsay because they are business records. Ill. R. Evid. 803(6) (eff. Jan. 1, 2011); see United States v. Yeley-Davis , 632 F.3d 673, 679 (10th Cir. 2011). But the proponent of a business record must establish, as a prerequisite to its admissibility, "(1) that the record was made as a memorandum or record of the act; (2) that the record was made in the regular course of business; and (3) that it was the regular course of the business to make such a record at the time of the act or within a reasonable time thereafter." People v. Nixon , 2015 IL App (1st) 130132, ¶ 110, 394 Ill.Dec. 416, 36 N.E.3d 349. The State did not put on any witnesses to fulfill this foundational requirement, so the T-Mobile report could not have been admissible pursuant to business records exception.

¶ 23 To be sure, as the State correctly pointed out at trial, some business records are self-authenticating. See Ill. R. Evid. 902 (11) (eff. Jan. 1, 2011). But to be self-authenticating, a business record must be accompanied by a certification from the record's custodian or a "qualified person" attesting to the three foundational requirements for business records described above. Id. None of the T-Mobile records were certified. As a result, the records were not admissible pursuant to Rule 902(11).

¶ 24 Our next step is to assess whether defendant is entitled to relief. We may only grant relief if the court's error prejudiced defendant, as harmless errors do not require reversal. To determine if an evidentiary error was harmless, we ask whether there is a "reasonable probability that the jury would have acquitted the defendant absent" the improperly admitted evidence. People v. Nevitt , 135 Ill. 2d 423, 447, 142 Ill.Dec. 854, 553 N.E.2d 368 (1990). We believe there is such a reasonable probability. Detective Lazansky's testimony filled an important gap in Detective Lara's testimony. Detective Lara testified that a silver SUV was following Vivas on the day of the robbery. That SUV was registered to one of defendant's associates, defendant was in its vicinity when he was arrested, and robbery proceeds were found inside it.

¶ 25 Yet, there was no evidence that actually put defendant inside the SUV when it was tailing Vivas. As Detective Lara admitted, it was impossible to determine from the surveillance footage who was inside the SUV. Detective Lazansky's testimony enabled the jury to make that inferential leap and conclude that defendant was in the silver SUV when it was following Vivas. And the jury was likely to do so. Detective Lazansky's testimony was imbued with the presumption of scientific certitude, a characteristic which can be highly persuasive to a jury. See People v. Wright , 2012 IL App (1st) 073106, ¶ 96, 361 Ill.Dec. 447, 971 N.E.2d 549 (acknowledging that certain forms of scientific evidence can have an oversized impact on the jury's deliberations). Thus, if Snyder's testimony left the jury with any doubt that defendant was at the crime scene, it is a virtual certainty that Detective Lazansky's testimony alleviated that doubt. Under these circumstances, we cannot conclude that the improper introduction of this evidence was harmless. Accordingly, we reverse defendant's conviction on this basis and remand for a new trial.

¶ 26 Because we find that this evidentiary error alone entitles defendant to relief, we need not consider defendant's constitutional claim, namely that because T-Mobile report was testimonial in nature, the introduction of this testimony violated defendant's sixth amendment right to confrontation. See In re E.H. , 224 Ill. 2d 172, 179-80, 309 Ill.Dec. 1, 863 N.E.2d 231 (2006) ("When a court is asked to evaluate the admission of out-of-court statements into evidence, the first step is determining whether the statement passes muster as an evidentiary matter. * * *. Only once the statement has first been found admissible as an evidentiary matter should constitutional objections-including Crawford -based confrontation clause claims-be dealt with.").

¶ 27 We also believe it is important to specifically address defendant's claim regarding his attorney's closing argument. When defense counsel began his closing argument, he attempted to use the trial transcript, evidently for two purposes: (1) to augment his argument with direct quotes from the trial testimony, and (2) because he had written notes on the transcript. The court forbade defense counsel from using the transcript, apparently out of concern that the transcript had not been authenticated. This was error. "A criminal defendant's right to make a closing summation before the finder of fact is a fundamental right derived from the sixth amendment guarantee of assistance of counsel." People v. Stevens , 338 Ill. App. 3d 806, 810, 273 Ill.Dec. 910, 790 N.E.2d 52 (2003) ; see Herring v. New York , 422 U.S. 853, 858, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) ("There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial."). The circuit court may place limits on argument, but those limits must be reasonable. People v. Diaz , 1 Ill. App. 3d 988, 992, 275 N.E.2d 210 (1971).

¶ 28 We find that the court's blanket prohibition against defense counsel using the trial transcript, on which he had written notes to assist with his closing argument, was an abuse of discretion. First, defense counsel transcribed his own notes that he wished to use during closing argument onto his copy of the transcript, a fact of which he specifically apprised the court following its sua sponte objection to defense counsel's conduct. The court never offered defense counsel the opportunity to transfer his notes to a medium that was acceptable to the court. Thus, by barring defense counsel from even holding the transcript, the court effectively barred defense counsel from using his own notes during closing argument.

¶ 29 Second, with respect to the transcript itself, there is no sound reason to bar an attorney from seasoning his or her closing argument with excerpts from the trial transcript. While a trial court may be justified in restricting the degree to which counsel uses a trial transcript, here the court issued a blanket prohibition on any use of transcripts during closing argument.

¶ 30 The court justified its ruling by explaining that the transcript defense counsel possessed had not been certified as authentic. But in practice the distinction between a certified and uncertified transcript is de minimis -the most typical difference is correction of typographical and scrivener's errors. It would be reasonable to bar an attorney from using an inaccurate transcript, but nothing in the record suggests that defense counsel's transcript was inaccurate.

¶ 31 Closing argument is an important part of a jury trial. It is one of only two times that a lawyer is allowed to speak directly to the jury, and it is the only time a lawyer can talk to the jury about the actual evidence in the case, and what reasonable inferences the jury should draw from the evidence. Herring , 422 U.S. at 862, 95 S.Ct. 2550. "And for the defense, closing argument is the last clear chance to persuade the trier of fact that there may be reasonable doubt of the defendant's guilt." Id. For these reasons, the court's actions in this case must be carefully scrutinized.

¶ 32 It is true that the circuit court retains broad discretion to limit the scope of closing argument. People v. Burnett , 237 Ill. 2d 381, 389, 341 Ill.Dec. 439, 930 N.E.2d 953 (2010). Trial judges retain "great latitude in controlling the duration and limiting the scope of closing summations." Herring , 422 U.S. at 862, 95 S.Ct. 2550. Judges may "limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant," and they may undertake steps to "ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial." Id. But the court's ruling here had nothing to do with the scope of defendant's argument. Nor was the court's ruling narrowly tailored to ensure that defense counsel's argument did not "stray unduly from that mark"-that is, exceed the bounds of proper argument by, for example, presenting misquoted testimony. The court's complete bar to use of the transcript, even to refer to notes written on it, was an abuse of discretion and prejudicial.

¶ 33 Because the error at issue was constitutional in nature-the circuit court effectively curtailed defense counsel's ability to perform as the "counsel" contemplated by the sixth amendment-the State must demonstrate that it was harmless beyond a reasonable doubt. For the reasons we have already explained, the evidence was closely balanced. That alone is enough to conclude that the court's error was not harmless beyond a reasonable doubt. Moreover, the error likely affected the result at trial. Defense counsel intended to deliver a closing argument focusing on the many contradictions in Snyder's testimony, buttressed by actual quotations from the trial transcript. Defense counsel could not do that because he could not use the transcript. Given the closeness of the evidence at trial, we cannot conclude that outcome at trial would have still been the same had defense counsel been able to use the trial transcript to drive home the various inconsistencies in Snyder's testimony.

¶ 34 In closing, we note that, although the properly admitted evidence presented a close case, that evidence was nonetheless sufficient for the State to sustain its burden of proof. Accordingly, there is no double jeopardy bar to retrial. People v. Piatkowski , 225 Ill. 2d 551, 567, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007).

¶ 35 CONCLUSION

¶ 36 For both reasons stated, we reverse defendant's conviction and remand for a new trial.

¶ 37 Reversed and remanded.

Presiding Justice Hoffman and Justice Cunningham concurred in the judgment and opinion.

      Sandoval filed a separate appeal docketed as case No. 1-15-1887. See People v. Sandoval , 2018 IL App (1st) 151887-U.