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    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antwan SPACE, Defendant-Appellant.
    Nos. 1-15-0922 1-15-1171
    Appellate Court of Illinois, First District, FIFTH DIVISION.
    Opinion filed: May 4, 2018
    Michael J. Pelletier, Patricia Mysza, and Jonathan Krieger, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Matthew Conners, and Tyler J. Cox, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Following a 2007 jury trial, defendant-appellant, Antwan Space, was convicted of first degree murder while attempting or committing a forcible felony other than second degree murder in violation of section 9-1(a)(3) of the Criminal Code of 1961 ( 720 ILCS 5/9-1(a)(3) (West 2002) ) (felony murder), and sentenced to 45 years' imprisonment. On appeal, defendant contends that (1) his conviction should be reversed because the State did not establish a requisite predicate forcible felony, (2) his conviction should be reversed and the case remanded because the trial court had violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) during jury selection, and (3) his mittimus should be corrected to reflect four additional days of presentencing custody credit. We reverse defendant's conviction for felony murder based on the State's failure to prove both that the asserted predicate forcible felony of aggravated battery with a firearm (1) had an independent felonious purpose and (2) proximately resulted in the victim's death, and we remand the case for a new sentencing hearing on the lesser-included offense of aggravated battery with a firearm.

¶ 2 Defendant was arrested on August 12, 2002, in connection with the August 9, 2002, shootings of cousins Mitchell Barrow and Virgil Thomas. The shootings were witnessed by Tiffany Allen, who was dating Mr. Barrow, and Debra Alexander. Defendant, the ex-boyfriend of Ms. Allen, twice shot Mr. Barrow and then, as Mr. Thomas assisted Mr. Barrow, shot Mr. Thomas. Mr. Barrow died as a result of the injuries he suffered from the gunshots. Mr. Thomas survived. Defendant was charged by indictment with 12 counts of first degree murder as to Mr. Barrow, as well as two counts of attempt (first degree murder), one count of aggravated battery with a firearm, and one count of aggravated battery as to Mr. Thomas.

¶ 3 Before trial, pursuant to defendant's motions, the trial court suppressed his postarrest statements. This decision was affirmed on interlocutory appeal. People v. Space , No. 1-05-1811, 366 Ill.App.3d 1225, 340 Ill.Dec. 153, 927 N.E.2d 892 (2007) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 4 The State proceeded to trial on a single count of first degree murder, which charged that defendant "without lawful justification shot and killed Mitchell Barrow with a firearm during the commission of a forcible felony, to wit: aggravated battery with a firearm" (count 11). All other charges were nol-prossed.

¶ 5 At the start of voir dire , the trial court addressed the entire venire as follows:

"Mr. Space as with other persons charged with crimes is presumed to be innocent of the charge that brings him before you. The presumption of innocence cloak[s] him now at the beginning of the trial and will continue [to] cloak him throughout the course of the proceedings[.] It is absolutely essential as we select this jury that each of you understand and embrace these fundamental principles of law. That is all persons charged with a crime are presumed to be innocent. And that is it is the burden of the State who has brought the charges to prove the [d]efendant guilty beyond a reasonable doubt. What this means [is] the [d]efendant has no obligation to testify in his own behalf or to call any witnesses in his defense. He may simply sit here and rely upon what he and his attorney perceive to be the inability of the State to present sufficient evidence to meet their burden. Should that happen, you will have to decide the case on the basis of evidence presented by the prosecution only.
The fact that the [d]efendant does not testify or present witnesses must not be considered by you in any way in arriving at your verdict. However, should the [d]efendant elect to testify or should his attorney present witnesses in his behalf, you are to consider that evidence in the same manner and by the same standard as evidence presented by the prosecution.
The bottom line is that there is no burden upon the [d]efendant to prove his innocence. It is the State's burden to prove him guilty beyond a reasonable doubt. The prosecutors are here to prosecute the case in support of the charge. The defense attorney is here to represent him and to insure that the State is held to its burden of proof."

¶ 6 To the first panel of 14 prospective jurors as a whole, the court said:

"Should the prosecutor fail to prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of not guilty? If so raise your hand. Let the record reflect there are no raised hands.
Should the prosecutor prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of guilty? If so raise your hand. Let the record reflect that there are no raised hands."

¶ 7 Immediately afterward, the State asked the entire panel:

"I just want to make sure is there anyone here if he did not testify would hold that against the [d]efendant? If you would hold the fact he did not testify would you raise your hand.
Let the record reflect no one has raised their hand."

¶ 8 The court dismissed 7 jurors from the first panel and proceeded to question another panel of 14 prospective jurors. The court asked the entire panel the following:

"If the prosecutor fails to prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of not guilty? If so raise your hand.
Let the record reflect there are no raised hands.
Should the prosecutors prove its case against the [d]efendant beyond a reasonable doubt, is there anyone of you who would hesitate to sign a verdict of guilty? If so raise your hand.
Let the record reflect that there are no raised hands."

¶ 9 The State then asked the panel:

"This is for everybody. The Judge has instructed you that the [d]efendant has the right not to testify. If the [d]efendant does not testify, is there anyone here that would hold that against him? If you would, raise your hand. Let the record reflect no one has raised their hand."

¶ 10 After selecting five more jurors and two alternate jurors from this group, the trial commenced.

¶ 11 In its opening statement, the State presented an overview of its case and the evidence. The State related that defendant was "inspired by jealousy" of Mr. Barrow's relationship with Ms. Allen and his "motive on that night was to murder Mitchell Barrow." Defendant "exacted his intention to get rid of" Mr. Barrow when he took out a handgun and fired it. After twice shooting Mr. Barrow, defendant's "mission of murder was already accomplished." After that, Mr. Thomas attempted to "get [Mr. Barrow] away from [the] clutches of defendant." Defendant "didn't stop there"; rather he "continued to walk toward [Mr. Barrow and Mr. Thomas] and shoot at [Mr. Barrow] as [Mr. Thomas] was trying to do nothing more but carry him to safety." The State finished its opening statement by telling the jurors that, at the close of evidence, it would ask them to "find [defendant] guilty of the two crimes that he committed that night, the aggravated battery of Virgil Thomas and the first-degree murder of Mitchell Barrow."

¶ 12 The testimony of Mr. Thomas, Ms. Allen, and Debra Alexander provided a background and a description of the shootings, as follows.

¶ 13 Ms. Allen, at the time of the shooting, had been dating Mr. Barrow, the father of two of her children, for four years and lived with him. Ms. Allen had known defendant for years and previously dated him.

¶ 14 During the week leading up to the shootings, Mr. Thomas went with Mr. Barrow to pick up Ms. Allen near the intersection of Douglas Boulevard and Homan Avenue in Chicago. Defendant was there with Ms. Allen, and Mr. Thomas heard defendant tell her that he loved her. Ms. Allen ultimately chose not to get into Mr. Barrow's vehicle. Mr. Barrow became angry and drove away. Later in the week, Mr. Thomas saw defendant with Ms. Allen two additional times.

¶ 15 On the evening of August 9, 2002, Mr. Barrow drove Mr. Thomas, Ms. Allen, Ms. Alexander, and a woman named Kathy to Douglas Park in Chicago. Mr. Barrow parked his vehicle near an area of the park where there were three concrete tables, surrounded by four benches and four or five "real bright" lights. The group exited the vehicle and entered the park. Mr. Thomas and Ms. Alexander, who were dating, sat at one table; Ms. Allen sat at a table next to them. Kathy and Mr. Barrow first sat on a bench and later stood and talked on the nearby sidewalk.

¶ 16 The witnesses testified that they consumed some alcohol prior to the shootings. Mr. Thomas initially testified that he drank "a shot" before acknowledging that he had "some drinks." He maintained that he was not drunk and that his consumption of alcohol did not affect what he saw or heard that night. Ms. Allen testified that she had "not even a half cup" of cognac. Ms. Alexander related that she had "maybe two sips" of cognac.

¶ 17 After a while, two men and a young woman approached the group; one of the men had braids in his hair and was wearing a T-shirt and shorts. Mr. Thomas, in his testimony, identified this individual as defendant. Ms. Allen testified that defendant was one of the men who approached the group that night but that, in all the years she had known defendant, she had never seen his hair in "dreadlocks," "cornrows," or braids.

¶ 18 Defendant first walked to the table where Ms. Allen was sitting. Shortly thereafter, Ms. Allen approached Mr. Barrow and said they should leave the park. Defendant walked over to them and pulled out a silver handgun. While a few feet from Mr. Barrow, defendant pointed the gun at him and fired it.

¶ 19 Ms. Allen ran and did not see whether Mr. Barrow had been struck. She heard five to six gunshots as she escaped. Ms. Allen saw only defendant with a gun that night.

¶ 20 When the gun was fired, Mr. Thomas and Ms. Alexander hid under the table. Mr. Thomas thought defendant's weapon was "automatic" but was "not for sure." Mr. Thomas and Ms. Alexander testified to defendant firing two more shots at that time.

¶ 21 After shooting Mr. Barrow, defendant's gun jammed, and he began to walk away while "fiddling with the gun." Defendant fired more shots into the air. As defendant walked away from him, Mr. Barrow, who was holding the left side of his chest, walked toward Mr. Thomas. Mr. Thomas saw defendant "moving away" and grabbed Mr. Barrow.

¶ 22 Mr. Thomas pulled Ms. Alexander from under the table and held Mr. Barrow as they all went to the vehicle. Mr. Thomas, however, had to return to the park to get the keys. When Mr. Thomas came back to the car, he gave the keys to Ms. Alexander and again grabbed Mr. Barrow to help him into the car. Mr. Barrow had been shot in the chest and was bleeding "real heavy." Mr. Thomas testified that defendant pointed a gun "directly at my way" and fired a shot. Mr. Thomas's leg "gave out," and he realized he had been shot. The bullet went through his hip and thigh, and as a result, Mr. Thomas suffered nerve damage and has difficulty standing on the injured leg.

¶ 23 On August 12, 2002, Mr. Thomas identified defendant in a lineup as the offender. At trial, Mr. Thomas testified that he recognized defendant in the lineup by the white T-shirt and shorts he was wearing and the braids in his hair. When the State showed Mr. Thomas a photo of defendant without braids, wearing shorts and an orange T-shirt, Mr. Thomas testified that it did not depict how defendant appeared in the lineup. The State also showed Mr. Thomas a photo showing the entire lineup, sitting down. Mr. Thomas testified that, although he recalled the individuals in the lineup had been standing, the photo otherwise accurately depicted the lineup. At the request of the State, Mr. Thomas drew an "X" on the lineup photo by the person wearing an orange T-shirt without braids as the one he had identified as the shooter. On cross-examination, Mr. Thomas testified that the photo of the lineup did not accurately depict the lineup he viewed because defendant had been wearing braids.

¶ 24 Detective Patrick Deenihan testified that defendant did not have braids when he was arrested, nor when he appeared in the August 12 lineup. In the lineup, defendant did wear an orange T-shirt and long denim shorts. Detective Deenihan confirmed that Mr. Thomas identified defendant in the lineup as the individual who shot him and Mr. Barrow. On August 13, 2002, Ms. Alexander viewed a lineup, which included defendant, but she did not make an identification.

¶ 25 The parties stipulated that (1) Dr. Leon Sykes would testify that, just after midnight on August 10, 2002, Mr. Thomas was treated for a gunshot wound to his left thigh and that Mr. Thomas had alcohol in his system; (2) Dr. Sykes would testify that he performed surgery on Mr. Barrow on August 10, 2002, and recovered a metal bullet from his body; (3) Lilly Ford would testify that, at approximately 11:30 p.m., she was sleeping at her residence on Douglas Boulevard in Chicago when falling glass from her window awoke her and she later found pieces of a bullet, which were recovered by police; (4) an evidence technician would testify that shortly after midnight on August 10, 2002, he photographed and collected four fired cartridge cases on Douglas Boulevard and photographed blood on the street near Mr. Barrow's car; (5) an evidence technician would testify to recovering a bullet in Ms. Ford's home; and (6) there was a proper chain of custody for the recovered bullets and fired cartridge cases.

¶ 26 Dr. Kendall Crowns, a pathologist, testified that, on August 11, 2002, he performed an autopsy of Mr. Barrow and found that he had sustained two gunshot wounds-one to his chest and another to his left arm. Dr. Crowns concluded that the cause of death was multiple gunshot wounds and the manner of death was homicide. Mr. Barrow had a blood-alcohol content of 0.074%, the equivalent of roughly three to four cans of beer.

¶ 27 John Onstwedder, an expert in the field of fingerprint identification, testified that there were no latent fingerprints on the four cartridge cases he examined. Mr. Onstwedder explained that it is possible for a person to touch an object and not leave fingerprints, depending on such factors as a lack of sufficient greases or oils on the finger to make a fingerprint and the touched object having a curved surface.

¶ 28 Aaron Horn, an expert in firearms and tool mark identification, examined the four fired cartridge cases recovered from Douglas Boulevard, the piece of bullet found by Ms. Ford, and the bullet recovered from Mr. Barrow's body. Mr. Horn testified that a difference between a revolver and a semiautomatic firearm is that a semiautomatic firearm ejects fired cartridge casings, whereas the fired cartridge cases of revolvers have to be physically removed. In this case, all cartridge cases and bullet pieces were designed for a .38 caliber firearm. Mr. Horn could neither eliminate nor identify the four cartridge cases, which were designed for a semiautomatic firearm, as having been fired from the same firearm. However, Mr. Horn concluded that the bullet and bullet piece he examined were fired from the same firearm, but he was unable to determine if they were fired by a revolver or semiautomatic firearm.

¶ 29 On cross-examination, Mr. Horn acknowledged that he could not conclude that the fired cartridge cases and the bullets he examined were discharged from the same firearm. Mr. Horn also could not make any conclusions about the fragment of a bullet that Ms. Ford found in her apartment the day after the shooting because it was unsuitable for examination.

¶ 30 The State rested. Defendant filed a motion for a directed verdict, arguing that the eyewitnesses did not make a credible identification of him as the shooter. The trial court denied the motion. Defendant waived his right to testify and rested.

¶ 31 In closing arguments, the State argued that defendant approached Douglas Park "scoping out his opportunity." The State also referred to Mr. Thomas when it described "the defendant point[ing] that gun now unjammed, that .380 and fir[ing] at him." The State further argued:

"You know that whoever fired that gun caused and did the act[,] the act that killed him, the defendant. * * * You know from what we talked about he is the one that did that. And that when the defendant did so he was committing the offense of aggravated battery with a firearm, so that charge is called felony murder rule.
How that works is if we have prove[d] to you, which we have, that the defendant committed aggravated battery with a firearm upon Virgil Thomas and Mitchell Barrow died during that course of events, during that time, he is guilty of his murder. I think that is direct and that is to the point.
To prove another [instruction] Honorable Judge Clay is going to read to you deals with aggravated battery, it says 'a person commits the offense of aggravated battery with a firearm when he, by means discharging a firearm, knowingly causes injury to another person.'
Well, he did discharge a firearm[;] we have the casings, the testimony of Horn, * * * the bullet in Mitchell Barrow, the bullet that went through Mitchell-I mean Virgil that you have in his leg.
Of course he did that. He performed the act. He shot a firearm at Virgil Thomas as Virgil was rounding that car * * *. And common sense tells you * * * that he knew he was going to cause injury and, in fact, he did. We have proven that.
And therefore because Mitchell dies during that time he is guilty. It is done."

¶ 32 In rebuttal, the State also argued that defendant murdered Mr. Barrow because of "his decision to act jealous[ly] on that night and to rub [Mr. Barrow] out." The State went on to argue:

"You heard all about the jealous rage[; maybe words weren't] spoken * * *, but * * * with something better [than] that even more tangible, even more concrete, it was spoken by this defendant right over here with every pull of that trigger, with every bang of that gun.
This defendant sent his message of jealousy and right [toward Mr. Barrow]. He killed him with [every one] of those messages, just like I told you in opening statements. Just like I told you what this evidence would have proved and it has. This defendant shot [Mr. Barrow] until he got rid of him. And the one person who was able to take him to * * * safety, his cousin[,] pulled him away. When he pulled him away that is why this defendant didn't stop his mission right then and there. He thought [maybe] this guy [was] going to save his life, [maybe] this guy [was] going to get him to safety or wait a minute more. So [maybe] this guy saw my face, well, yeah, [Mr. Thomas] did see his face. This defendant had to know that he had been seen a couple of days earlier by [Mr.] Mitchell when [Mr.] Mitchell was trying to pick [up] Tiffany * * *. There is no question about it, this defendant had a motive that night. * * *
* * *
[Defendant] is the shooter from that night, is the killer, is the man who committed aggravated battery upon Virgil Thomas and murdered in cold blood Mitchell Barrow."

¶ 33 After closing arguments, the trial court instructed the jury as follows:

"[A] person commits the offense of first degree murder when he kills an individual in performing the act which causes death he was committing the offense of aggravated battery with a firearm. A person commits the offense of aggravated battery with a firearm when he, by means of discharging of a firearm, knowingly causes injury to another person."
* * *
"To sustain the charge of first degree murder the State must prove the following propositions: First, that the defendant performed the act which caused the death of Mitchell Barrow * * * [S]econd, when the defendant did so he was committing the offense of aggravated battery with a firearm."

¶ 34 The jury found defendant guilty of felony murder. After denying defendant's oral motion for a new trial, the trial court sentenced him to 45 years' imprisonment. A timely appeal was not filed.

¶ 35 In 2011, defendant filed a pro se petition seeking relief pursuant to the Post-Conviction Hearing Act ( 725 ILCS 5/122-1 et seq. (West 2010) ), which alleged his trial counsel was ineffective for failing to file a notice of appeal from his conviction. Postconviction counsel filed an amended petition, which sought leave to file a late notice of appeal from defendant's conviction for felony murder. The trial court granted this request, and postconviction counsel filed a notice of appeal (No. 1-15-0922) from defendant's conviction. See People v. Ross , 229 Ill. 2d 255, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008) (when a postconviction petitioner demonstrates that counsel was ineffective for failing to file a notice of appeal, the trial court may allow the petitioner leave to file a late notice of appeal). Defendant also filed a pro se notice of appeal (No. 1-15-1771). We consolidated the appeals.

¶ 36 On appeal, defendant first contends that his conviction for felony murder should be reversed because the State did not establish a valid predicate forcible felony to sustain his conviction. Specifically, defendant argues that his felony murder conviction cannot be based upon the predicate felony of the aggravated battery with a firearm of Mr. Thomas where the evidence failed to establish both that the aggravated battery with a firearm of Mr. Thomas had an independent felonious purpose apart from the murder itself and proximately caused Mr. Barrow's death. We will address each of defendant's contentions, in order.

¶ 37 The State urges that defendant forfeited this issue in that he did not raise it below by any objection at trial or in a written posttrial motion. We disagree. Defendant's argument, as to the State's failure to prove a valid predicate forcible felony, is directed toward the sufficiency of the evidence and may be raised for the first time on direct appeal. In re Dionte J. , 2013 IL App (1st) 110700, ¶¶ 78-79, 373 Ill.Dec. 350, 993 N.E.2d 909 (where " 'a defendant makes a challenge to the sufficiency of the evidence, his or her claim is not subject to the waiver rule and may be raised for the first time on direct appeal' " (quoting People v. Woods , 214 Ill. 2d 455, 470, 293 Ill.Dec. 277, 828 N.E.2d 247 (2005) ) ).

¶ 38 In this case, defendant was charged with felony murder based on the theory that, in performing the acts which caused Mr. Barrow's death, he was committing aggravated battery with a firearm.

¶ 39 The first degree murder statute sets forth three mental states or conduct that may accompany acts that cause a murder. People v. Davis , 233 Ill. 2d 244, 263, 330 Ill.Dec. 744, 909 N.E.2d 766 (2009) ("A defendant can (1) intend to kill or do great bodily harm to the victim (intentional murder), (2) know that his acts create a strong probability of death or great bodily harm to the victim (knowing murder, also known as strong probability murder), or (3) attempt or commit a forcible felony other than second degree murder (felony murder)." Id. (citing 720 ILCS 5/9-1(a) (West 2004) ).

¶ 40 Under the felony murder statute, " '[a] person who kills an individual without lawful justification commits first degree murder if, in performing the acts which cause the death * * * he is attempting or committing a forcible felony other than second degree murder.' " People v. Belk , 203 Ill. 2d 187, 192, 271 Ill.Dec. 271, 784 N.E.2d 825 (2003) (quoting 720 ILCS 5/9-1(a)(3) (West 1996) ); 720 ILCS 5/9-1(a)(3) (West 2002). Aggravated battery, resulting in great bodily harm or permanent disability or disfigurement, is a forcible felony for purposes of the felony murder statute. 720 ILCS 5/2-8 (West 2002). A person commits aggravated battery with a firearm when he, in committing a battery, knowingly or intentionally by means of the discharging of a firearm causes any injury to another person. 720 ILCS 5/12-4.2(a)(1) (West 2002).

¶ 41 We recognize that the felony murder charge against defendant did not specifically name the victim of the predicate felony of aggravated battery with a firearm. It is defendant's position on appeal that the State "offered two theories of the victim of that predicate [aggravated battery with a firearm], suggesting at points that it was [Mr.] Barrow and at other points that it was Virgil Thomas." The State in response argues that its sole theory at trial was that Mr. Thomas was the victim of the aggravated battery with a firearm, which was the asserted predicate forcible felony, for the felony murder of Mr. Barrow. As to this issue, we agree with the State.

¶ 42 The aggravated battery charges of the indictment, including the aggravated battery with a firearm count, listed only Mr. Thomas as the victim. The State, in its prosecution of the felony murder charge, made clear that it was seeking a conviction based on the aggravated battery with a firearm of Mr. Thomas. We, therefore, will consider only whether the aggravated battery of Mr. Thomas, based on the evidence, can serve as the requisite forcible felony to sustain defendant's conviction for felony murder.

¶ 43 Although, in rejecting the State's forfeiture objection, we agreed that defendant's argument is directed toward the sufficiency of the evidence, the ultimate issue as to whether the aggravated battery with a firearm constitutes a proper predicate felony in this case is one of law, which we review de novo . People v. Davison , 236 Ill. 2d 232, 239, 337 Ill.Dec. 930, 923 N.E.2d 781 (2010) (citing People v. Pelt , 207 Ill. 2d 434, 439, 279 Ill.Dec. 610, 800 N.E.2d 1193 (2003) ).

¶ 44 The purpose of the felony murder statute is to limit the violence that accompanies the commission of forcible felonies, so that anyone engaged in such violence will automatically be subject to a murder prosecution should someone be killed during the commission of a forcible felony. Belk , 203 Ill. 2d at 192, 271 Ill.Dec. 271, 784 N.E.2d 825 ; People v. Johns , 345 Ill. App. 3d 237, 242, 280 Ill.Dec. 380, 802 N.E.2d 305 (2003) ("Felony murder seeks to deter persons from committing forceable felonies by holding them responsible for murder if a death results."). To this end, the offense of felony murder is unique because, in order to commit felony murder, the defendant need not have had the intent to kill. Davison , 236 Ill. 2d at 239-40, 337 Ill.Dec. 930, 923 N.E.2d 781 ; People v. Jones , 376 Ill. App. 3d 372, 387, 315 Ill.Dec. 15, 876 N.E.2d 15 (2007) (felony murder derives its mental state from the underlying offense); see also People v. Dekens , 182 Ill. 2d 247, 259, 230 Ill.Dec. 984, 695 N.E.2d 474 (1998) (Heiple, J., dissenting) ("In Illinois, the only type of first degree murder which does not require proof of a specific mens rea , or intent, on the part of the defendant is felony murder. [Citation.] The felony-murder doctrine thus stands as a substitute for intent in cases where the defendant's commission of a felony causes another person's death."). Therefore, in order to sustain defendant's felony murder conviction, the State is not required to prove that he had the intent to kill. People v. Shaw , 186 Ill. 2d 301, 322, 239 Ill.Dec. 311, 713 N.E.2d 1161 (1998) ; People v. Dennis , 181 Ill. 2d 87, 105, 229 Ill.Dec. 552, 692 N.E.2d 325 (1998).

¶ 45 As a result of this distinction from other forms of first degree murder, our supreme court has repeatedly expressed its concern that a felony murder charge may, in effect, improperly allow the State to both eliminate the offense of second degree murder and avoid the burden of proving an intentional or knowing first degree murder. See Davison , 236 Ill. 2d at 240, 337 Ill.Dec. 930, 923 N.E.2d 781 (and cases cited therein). This concern was especially paramount in cases where the same conduct forms the basis of the predicate felony and the killing. See People v. Morgan , 197 Ill. 2d 404, 259 Ill.Dec. 405, 758 N.E.2d 813 (2001). Addressing this situation, our supreme court in Morgan held that "where the acts constituting forcible felonies arise from and are inherent in the act of murder itself, those acts cannot serve as predicate felonies for a charge of felony murder." Id. at 447, 259 Ill.Dec. 405, 758 N.E.2d 813. Moreover, as stated in Morgan , in order to support a charge of felony murder, "the predicate felony underlying a charge of felony murder must have an independent felonious purpose," i.e. , it must have some independent motivation or purpose apart from the murder itself. Id. at 458, 259 Ill.Dec. 405, 758 N.E.2d 813 ; People v. Alvarez-Garcia , 395 Ill. App. 3d 719, 733-34, 344 Ill.Dec. 59, 936 N.E.2d 588 (2009).

¶ 46 Here, the act constituting the aggravated battery of Mr. Thomas was not an act that gave rise to or was inherent in the murder of Mr. Barrow and, thus, did not run afoul of Morgan on this basis. The State, however, did not establish that the aggravated battery with a firearm of Mr. Thomas had an independent felonious purpose apart from the murder of Mr. Barrow.

¶ 47 The State's theory underlying the prosecution of the felony murder charge, as reflected in its opening statement and closing arguments, supports this conclusion. In opening statements, the State told the jury that, on the night of the shootings, defendant went to Douglas Park with a "mission of murder" and a "motive" to "murder" and "get rid of" Mr. Barrow. The State further stated that defendant had this "murderous intent" when he shot Mr. Thomas. In closing arguments, the State again asserted that defendant had the motive "to rub [Mr. Barrow] out" and that he came to the park to carry out that intent. The State further contended that defendant continued his mission to murder Mr. Barrow when he shot Mr. Thomas because defendant thought Mr. Thomas was "going to save [Mr. Barrow's] life, [maybe] this guy is going to get him to safety."

¶ 48 The State's arguments at trial, as to defendant's felonious purpose, are supported by the evidence presented. The record shows that, when defendant fired the gun in the direction of Mr. Thomas, Mr. Thomas was holding Mr. Barrow in his arms. It is possible, as argued by the State, that defendant fired the gun at that time to prevent Mr. Thomas from saving Mr. Barrow's life. But it is also possible that defendant was intending again to shoot Mr. Barrow but he hit Mr. Thomas instead. Both of these reasonable possibilities tend to show that defendant was acting with the same felonious purpose of accomplishing the murder of Mr. Barrow when he committed the aggravated battery of Mr. Thomas. Our examination of the record does not yield that defendant's conduct in shooting Mr. Thomas clearly exhibited a distinct felonious purpose, other than his motive and purpose to accomplish the murder of Mr. Barrow.

¶ 49 With regard to causation, defendant argues that there is no evidence that Mr. Barrow's death was the proximate result of the shooting of Mr. Thomas where Mr. Barrow was fatally wounded before the aggravated battery with a firearm of Mr. Thomas took place. In its brief, the State does not specifically respond to this causation argument. We agree with defendant.

¶ 50 "Illinois adheres to the 'proximate cause' theory of liability for felony murder, meaning 'liability attaches under the felony-murder rule for any death proximately resulting from the unlawful activity.' " People v Brown , 2015 IL App (1st) 131552, ¶ 30, 394 Ill.Dec. 238, 35 N.E.3d 1207 (quoting People v. Lowery , 178 Ill. 2d 462, 465, 227 Ill.Dec. 491, 687 N.E.2d 973 (1997) ); see also Shaw , 186 Ill. 2d at 322, 239 Ill.Dec. 311, 713 N.E.2d 1161 ("Felony murder depends solely on a cause and effect relationship between the crime committed and the resulting murder to impose liability."). "For the felony-murder rule to attach, the act causing the death must both occur during the underlying felony and be the direct and proximate result of the felony." Johns , 345 Ill. App. 3d at 244, 280 Ill.Dec. 380, 802 N.E.2d 305. Stated differently, the focus of the proximate cause theory of liability is: "when a felon's attempt to commit a forcible felony sets in motion a chain of events which were or should have been within his contemplation when the motion was initiated, he should be held responsible for any death which by direct and almost inevitable sequence results from the initial criminal act." Lowery , 178 Ill. 2d at 467, 227 Ill.Dec. 491, 687 N.E.2d 973 ; Jones , 376 Ill. App. 3d at 387, 315 Ill.Dec. 15, 876 N.E.2d 15.

¶ 51 Here, the evidence showed that defendant began his crime spree that night by twice shooting Mr. Barrow, with one of those gunshots hitting Mr. Barrow's chest. Only after defendant twice shot Mr. Barrow (and dealt with the weapon becoming jammed) did he turn his gun on Mr. Thomas. Given this sequence of events, the act causing the death-the shooting of Mr. Barrow-occurred before and not during the asserted predicate felony-the aggravated battery with a firearm of Mr. Thomas. See Johns , 345 Ill. App. 3d at 244, 280 Ill.Dec. 380, 802 N.E.2d 305 ("[f]or the felony-murder rule to attach, the act causing the death must * * * occur during the underlying felony").

¶ 52 Moreover, Mr. Barrow's death was not the proximate result of the aggravated battery with a firearm of Mr. Thomas. There was no direct or circumstantial evidence showing that, by shooting Mr. Thomas in the leg, defendant set in motion a chain of events that resulted in Mr. Barrow's death. In fact, the medical evidence was that Mr. Barrow died of the gunshot wounds he sustained prior to defendant's act of shooting Mr. Thomas. Therefore, Mr. Barrow's death was not the result of the aggravated battery with a firearm of Mr. Thomas. It was the earlier shootings of Mr. Barrow that led to his death. Because the aggravated battery with a firearm felony did not meet the causation requirement of the felony murder rule, we find that the aggravated battery with a firearm of Mr. Thomas was not a valid predicate felony.

¶ 53 At oral argument, the State maintained that the aggravated battery with a firearm of Mr. Thomas was a valid predicate felony, despite the fact that it occurred after Mr. Barrow received his fatal gunshot wounds. The State cited People v. Griffith , 334 Ill. App. 3d 98, 267 Ill.Dec. 656, 777 N.E.2d 459 (2002), and People v. Stout , 122 Ill. App. 3d 254, 77 Ill.Dec. 641, 460 N.E.2d 1205 (1984), in support of its argument. We disagree.

¶ 54 The defendant in Griffith was living in the victim's apartment. Griffith , 334 Ill. App. 3d at 100, 267 Ill.Dec. 656, 777 N.E.2d 459. Following an argument after the victim left the apartment, the defendant pried open the victim's safe in an attempt to take his cash but found no money. Id. at 101, 267 Ill.Dec. 656, 777 N.E.2d 459. The victim then returned to the apartment. Id. The defendant, fearing the victim would hurt him or call the police when he discovered that he had pried open the safe, beat and stabbed the victim. Id. The defendant then took the victim's wallet. Id. The defendant later made statements that he had killed the victim for the money. Id. at 102, 267 Ill.Dec. 656, 777 N.E.2d 459. At trial, however, the defendant testified that he took the wallet as an "afterthought." Id. at 111, 267 Ill.Dec. 656, 777 N.E.2d 459. The defendant was found guilty of felony murder and armed robbery. Id. at 109, 267 Ill.Dec. 656, 777 N.E.2d 459. This court affirmed the defendant's convictions, finding:

"The afterthought defense does not work. [The defendant] was able to take the money because he had rendered [the victim] helpless. The jury did not have to find [the defendant] formed the criminal intent to commit armed robbery before committing the murder. [ People v. Pitsonbarger , 142 Ill. 2d 353, 372-73, 154 Ill.Dec. 562, 568 N.E.2d 783 (1990) ] ('it is sufficient that the State proved the elements of the crime and the accompanying felonies were part of the same criminal episode')." Griffith , 334 Ill. App. 3d at 111, 267 Ill.Dec. 656, 777 N.E.2d 459.

¶ 55 A similar result was reached in Stout . There, the defendant and the codefendant argued with and then beat the victim because the victim refused to give the defendant a drink. Stout , 122 Ill. App. 3d at 256-57, 77 Ill.Dec. 641, 460 N.E.2d 1205. During the beating, the defendant took the victim's watch. Id. at 257, 77 Ill.Dec. 641, 460 N.E.2d 1205. The defendant, on appeal, argued that he took the watch as an "afterthought." Id. at 260, 77 Ill.Dec. 641, 460 N.E.2d 1205. The appellate court affirmed the defendant's felony murder conviction based on the robbery, stating:

"In any event, no Illinois case has stated that the fact that robbery is an afterthought of acts of beating prevents the operation of the felony murder rule. The rule is broad in scope. [Citation.] Responsibility attaches to an accused 'for those deaths which occur during a [forcible] felony and which are the foreseeable consequence of his initial criminal acts.' [Citation.] According to one of [the defendant's] statements, the striking of [the victim] was part of the procedure by which the watch was forcibly removed from [the victim's] person. Robbery is not a specific intent crime, and neither [the defendant] nor [the codefendant] needed to have the intent to deprive [the victim] of his property at the time the beating started in order for that conduct to be part of the offense of robbery. Considering [the victim's] age and physical condition, his death was a foreseeable consequence of the beating shown by the evidence. The evidence supported a determination that a felony murder occurred." Id. at 260-61, 77 Ill.Dec. 641, 460 N.E.2d 1205.

¶ 56 In each case, the defendants argued that the actual taking occurred after the conduct which resulted in the death of the victims and, therefore, robbery could not serve as a predicate felony. The reviewing courts rejected those arguments because the offense of robbery is not a specific intent crime, i.e. , the taking by force or threat of force is the gist of the offense of robbery and no intent need be charged. See People v. Banks , 75 Ill. 2d 383, 391-92, 27 Ill.Dec. 195, 388 N.E.2d 1244 (1979). As such, there was no requirement that the defendants in Griffith and Stout formed the intent to commit the robbery before they began to act in order for the State to establish a valid predicate felony. Rather, the robberies-the predicate felonies-began and were accomplished by the conduct that resulted in the victims' deaths. Accordingly, in each case, because the conduct causing the death of the victim occurred during the predicate felony and the death of the victim was the proximate result of that conduct, a conviction for felony murder was appropriate.

¶ 57 Here, unlike in Griffith and Stout , the predicate felony-the aggravated battery with a firearm of Mr. Thomas-did not begin, nor was it accomplished, by the conduct that resulted in the death of Mr. Barrow. Rather, as mentioned, defendant began his crime spree by twice shooting Mr. Barrow. One of those gunshots hit Mr. Barrow in the chest and resulted in his death. Defendant then turned his gun on Mr. Thomas. Therefore, the conduct causing the death of Mr. Barrow did not occur during the predicate felony-the aggravated battery with a firearm of Mr. Thomas-nor was it the proximate result of Mr. Barrow's death.

¶ 58 At oral argument, the State, in addressing proximate cause, also maintained that, by shooting Mr. Thomas, defendant prevented Mr. Barrow from receiving timely medical treatment, which then led to his death. The State did not present this theory of proximate cause at trial or in its brief. (The State did assert that defendant's felonious purpose in shooting Mr. Thomas was, possibly, to prevent him from saving Mr. Barrow.) Therefore, the argument has been forfeited. Ill. S. Ct. R. 341(h)(7), (i) (eff. Nov. 1, 2017).

¶ 59 Forfeiture aside, the State's argument ignores the fact that defendant's act of shooting Mr. Barrow occurred before the aggravated battery with a firearm of Mr. Thomas. The argument also ignores that it was the shots fired at Mr. Barrow which set in motion his murder, and not the aggravated battery with a firearm of Mr. Thomas. In addition, there was no evidence that Mr. Barrow would have survived his gunshot wounds if he had reached the hospital sooner. Even if there was such evidence, the State's argument is essentially another way of saying that defendant was so determined to kill Mr. Barrow that he shot Mr. Thomas to prevent him from saving Mr. Barrow. This argument then tacitly acknowledges that the predicate felony-the aggravated battery with a firearm-was committed to effectuate the murder of Mr. Barrow and had the same felonious purpose.

¶ 60 Accordingly, given our conclusion that the aggravated battery with a firearm did not have an independent felonious purpose and that the aggravated battery with a firearm of Mr. Thomas and the murder of Mr. Barrow did not have the necessary causal relationship, we must reverse defendant's felony murder conviction.

¶ 61 However, defendant concedes, and we agree, that "the predicate felony underlying a charge of felony murder is a lesser-included offense of felony murder." People v. Smith , 233 Ill. 2d 1, 17, 329 Ill.Dec. 331, 906 N.E.2d 529 (2009) ; see also People v. Rosenthal , 394 Ill. App. 3d 499, 508, 333 Ill.Dec. 275, 914 N.E.2d 694 (2009) (holding that aggravated battery with a firearm is a lesser-included offense of felony murder, predicated on aggravated battery with a firearm and, also, mentioning that "inherent in the verdict finding defendant guilty of murder, the jury also found defendant guilty beyond a reasonable doubt of the predicate aggravated battery with a firearm"). In this court, defendant does not challenge the sufficiency of the evidence as to the lesser-included offense of the aggravated battery with a firearm of Mr. Thomas. Moreover, our review of the evidence shows that the State proved, beyond a reasonable doubt, that defendant shot Mr. Thomas in the leg without justification and that Mr. Thomas suffered significant and permanent injury as a result of the gunshot. As such, although we reverse defendant's conviction for felony murder, we will consider his argument regarding the propriety of the trial court's jury admonishments.

¶ 62 Defendant maintains that the trial court did not comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) when it failed to ensure the prospective jurors understood and accepted each principle set out in the rule. Whether the trial court complied with Rule 431(b) presents a question of law that we review de novo . People v. Belknap , 2014 IL 117094, ¶ 41, 387 Ill.Dec. 633, 23 N.E.3d 325.

¶ 63 As a threshold matter, defendant forfeited this issue on appeal because he did not object below to the trial court's failure to comply with Rule 431(b), nor did he include the issue in his posttrial motion. Id. ¶ 47. However, the plain-error doctrine allows a reviewing court to consider a forfeited 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. People v. Thompson , 238 Ill. 2d 598, 613, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010) ; People v. Piatkowski , 225 Ill. 2d 551, 564-65, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). In plain-error review, the burden of persuasion rests with the defendant. Thompson , 238 Ill. 2d at 613, 345 Ill.Dec. 560, 939 N.E.2d 403. The first step of plain-error review is determining whether any error occurred. Id.

¶ 64 The State concedes, and we agree, that the trial court's failure to expressly ask the prospective jurors if they understood Rule 431(b) principles amounts to error. See People v. Wilmington , 2013 IL 112938, ¶ 32, 368 Ill.Dec. 211, 983 N.E.2d 1015. Here, although the trial court admonished the prospective jurors regarding the principles set out in Rule 431(b), the record shows that the court did not expressly ask the prospective jurors if they understood those principles. It is well settled that a trial court errs when it fails to ask prospective jurors whether they both understand and accept the principles set forth in Rule 431(b). Belknap , 2014 IL 117094, ¶ 46, 387 Ill.Dec. 633, 23 N.E.3d 325. Furthermore, the failure to ask the jury whether it understands the principles of Rule 431(b), by itself, constitutes error. Id. Therefore, we must consider whether the trial court's error prejudiced defendant. People v. Herron , 215 Ill. 2d 167, 187, 192, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005).

¶ 65 Defendant does not argue that the trial court's violation of Rule 431(b) is reviewable under the second prong of plain error, permitting review where an error is so serious, that it affected the fairness of defendant's trial and challenged the integrity of the judicial system. See Thompson , 238 Ill. 2d at 610-15, 345 Ill.Dec. 560, 939 N.E.2d 403 (finding that a violation of Rule 431(b) does not satisfy the second prong of plain error). Rather, defendant argues, under the first prong of the plain-error doctrine, that the error threatened to tip the scales of justice against him because the evidence at trial was closely balanced.

¶ 66 Under the first prong of plain error, "prejudice rests not upon the seriousness of the error but upon the closeness of the evidence." People v. Sebby , 2017 IL 119445, ¶ 68, 417 Ill.Dec. 756, 89 N.E.3d 675. As a result, defendant must show that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. Herron , 215 Ill. 2d at 187, 294 Ill.Dec. 55, 830 N.E.2d 467 ; see also Sebby , 2017 IL 119445, ¶¶ 51, 68-69, 417 Ill.Dec. 756, 89 N.E.3d 675 ("The only question in a first-prong case, once clear error has been established, is whether the evidence is closely balanced."). This requires the reviewing court to undertake a common sense analysis of all evidence in context ( Belknap , 2014 IL 117094, ¶ 50, 387 Ill.Dec. 633, 23 N.E.3d 325 ), including evidence regarding the witnesses' credibility and evidence on the elements of the charged offense. Sebby , 2017 IL 119445, ¶ 53, 417 Ill.Dec. 756, 89 N.E.3d 675.

¶ 67 Because we have reversed the felony murder conviction but affirmed the finding of guilty as to the lesser included offense of aggravated battery with a firearm, we consider whether the evidence as to that offense was closely balanced.

¶ 68 In this case, two witnesses, Ms. Allen and Mr. Thomas, testified consistently as to seeing defendant at the park with a gun on the night in question. Mr. Thomas testified that he was assisting Mr. Barrow into the car when defendant pointed a gun in his direction and then fired the gun. The bullet struck Mr. Thomas in the leg and went through his hip and thigh. As a result, Mr. Thomas suffered and continues to have nerve damage and difficulty standing on the injured leg.

¶ 69 Mr. Thomas's testimony was corroborated by the parties' stipulation that, if called, an evidence technician would testify that, shortly after the incident, he photographed and collected four fired cartridge cases on Douglas Boulevard and photographed blood on the street near Mr. Barrow's car.

¶ 70 After the shooting, Mr. Thomas identified defendant from a lineup as the shooter. See People v. Starks , 2014 IL App (1st) 121169, ¶ 48, 382 Ill.Dec. 588, 13 N.E.3d 1 ("It is well established that a single witness's identification is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification."). Although Mr. Thomas's identification contained inconsistencies, we note that these inconsistencies were fully explored at trial and do not render his identification invalid but, rather, go to the weight to be afforded to his testimony by the trier of fact. See People v. Dukes , 40 Ill. App. 3d 490, 492, 352 N.E.2d 255 (1976).

¶ 71 The evidence of the aggravated battery with a firearm of Mr. Thomas, in this case, was not closely balanced, and defendant was not prejudiced by the trial court's error during voir dire . Thus, he has forfeited review of this error.

¶ 72 Finally, although the parties agree that defendant's mittimus should be corrected to reflect four additional days of sentence credit for the time defendant spent in presentence custody, we need not consider this argument, as we are remanding for resentencing on the lesser-included offense of aggravated battery with a firearm.

¶ 73 In sum, we reverse defendant's conviction for felony murder but affirm the finding of guilt as to the lesser-included offense of the aggravated battery with a firearm of Mr. Thomas and remand for resentencing on that offense. See Rosenthal , 394 Ill. App. 3d at 508, 516, 333 Ill.Dec. 275, 914 N.E.2d 694 (holding aggravated battery with a firearm is a lesser-included offense of felony murder predicated on aggravated battery with a firearm and, upon reversing defendant's conviction for felony murder, remanding the case for sentencing on defendant's conviction for aggravated battery with a firearm).

¶ 74 Affirmed in part, reversed in part, and remanded.

Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

      Habeas corpus relief granted on other grounds by United States ex rel. Griffith v. Hulick , 587 F.Supp.2d 899 (N.D. Ill. Nov. 12, 2008).


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher M. HOLMES, Defendant-Appellant.
    Appeal No. 3-16-0060
    Appellate Court of Illinois, Third District.
    Opinion filed May 8, 2018
    James E. Chadd, Peter A. Carusona, and Alan M. Freedman, of State Appellate Defender's Office, of Ottawa, for appellant.
    Jason W. Pohren, State's Attorney, of Carthage (Patrick Delfino, Lawrence M. Bauer, and Mark A. Austill, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Defendant, Christopher M. Holmes, appeals from his conviction for aggravated criminal sexual abuse. Defendant argues (1) the circuit court improperly overruled defense counsel's objection to lay opinion testimony regarding defendant's intent and (2) the State failed to prove aggravated criminal sexual abuse beyond a reasonable doubt. We affirm.

¶ 2 FACTS

¶ 3 On May 19, 2014, the State charged defendant with the aggravated criminal sexual abuse ( 720 ILCS 5/11-1.60(d) (West 2014) ) of M.S., a minor, who was at least 13 years of age but under 17 years of age. The cause proceeded to a jury trial.

¶ 4 M.S. testified that in May 2014, she lived with her mother, S.F.; two brothers, T.S. and G.S.; and defendant. Defendant and S.F. were married; defendant was her stepfather. At the time, M.S. was 16 years old. M.S. described her relationship with defendant as "typical." However, in early 2014, defendant's relationship with M.S. changed; M.S. no longer felt safe around defendant. In January 2014, defendant picked M.S. up by placing his hands under M.S.'s arms. Defendant swung M.S. in the air. While picking M.S. up, at least one of defendant's hands slid under M.S.'s shirt and touched an area under her bra. G.S. saw defendant's actions and seemed surprised. Defendant let go of M.S.; M.S. went to her room. G.S. told M.S. "that's not right" or "he's a pervert." M.S. initially did not take the incident seriously as she attributed defendant's inappropriate contact to an accident. After the incident, defendant began treating M.S. "overly nicely."

¶ 5 On the evening of May 17, 2014, M.S. ate dinner at her house with defendant and T.S. T.S. left the house after dinner. Defendant went to the lower-level laundry room. While T.S. was still at the kitchen table, defendant asked M.S. to come downstairs to help him with the laundry. This was unusual as each family member did their own laundry. Nevertheless, M.S. went to the laundry room and started a load of laundry in the washer. Defendant asked M.S., "Can you keep a secret?" M.S. responded, "It depends what it is." Defendant said M.S.'s response was not very convincing; defendant asked again if M.S. could keep a secret. M.S. eventually said "sure." Defendant then started pulling up the right side of her shirt. M.S. told defendant to stop and hit his hand away. When M.S. attempted to walk away, defendant grabbed her from behind and stuck his hands up her shirt. M.S. said both of defendant's hands were underneath her bra and touched her breasts. M.S. yelled at defendant to stop, and defendant replied in a sarcastic tone, "What am I doing?" M.S. yelled, " 'You're touching my F-ing breasts.' " M.S. broke away from defendant, ran upstairs, and locked herself in her bedroom. M.S. had left her cell phone on the kitchen table so she made a Facebook post asking if anyone had her mother's telephone number. While M.S. was attempting to get the telephone number, defendant knocked on her bedroom door and asked M.S. to finish the glass of milk that she had left on the table. At that point, approximately one hour had passed since M.S. ate dinner. M.S. responded, " '[o]bviously I'm not going to come out of the room. You just attacked me.' " M.S. heard defendant go into the bathroom, and she hurried to the kitchen to retrieve her cell phone and returned to her bedroom. M.S. sent a text message to S.F. regarding the incident and asking her to come home. S.F. called M.S. and told her to call 911. S.F. then called defendant. M.S. overheard defendant denying the incident while speaking to S.F. on the telephone. M.S. called 911; stayed in her bedroom until police arrived.

¶ 6 On cross-examination, M.S. clarified that defendant "firmly cupped" her breasts; he did not "squeeze" or "rub" them. M.S. occasionally had arguments with defendant regarding "typical parent stuff." M.S. had wanted to attend a festival in Chicago, but her biological parents would not let her go because of the lack of adult supervision. Defendant also did not want M.S. to go to the festival but her biological parents ultimately made the decision.

¶ 7 S.F. testified that, in 2014, she and defendant were married and lived together with her three children, T.S., M.S., and G.S. On May 17, 2014, S.F. worked at a nursing home from 2 p.m. to 10:30 p.m. Toward the middle of her shift, she received a text message from M.S. M.S.'s message was unusual in that she did not ordinarily contact her mother at work. In the message, M.S. asked S.F. to come home right away because defendant had attacked her. She sent a reply text that directed M.S. to " '[g]o to [her] room and be safe.' " S.F. then called defendant and said:

" 'What the hell were you doing?' And [defendant] said, 'What do you mean?' And I said, 'Did you touch my daughter?' And [defendant's] exact words were, 'She never comes out of her room. How can I touch her?' And I said 'You're lying.' And I hung up."

M.S. overheard S.F.'s conversation with defendant; she sent S.F. a text message that said defendant was lying.

¶ 8 S.F. called M.S. after she got off the phone with defendant. M.S. sounded scared and did not exhibit her usual quiet demeanor. S.F. told M.S. to barricade herself in the room and call 911.

¶ 9 A few days later, M.S. explained the incident in greater detail to S.F. M.S. said that she was facing defendant when defendant put his hands up her shirt. S.F. later clarified, that M.S. said that defendant touched her breasts while standing behind her. S.F. acknowledged that she did not remember the exact details.

¶ 10 G.S. testified that M.S. was his older sister. In 2014, he lived with his mother, defendant, M.S., and his older brother, T.S. In January 2014, G.S. saw defendant pick M.S. up from behind and swing her in the air. G.S. noted M.S.'s "shirt was, like, this side up and [defendant's] hands were up here on her chest." M.S. jumped down and walked away. G.S. followed M.S. and told her that he thought defendant's actions "looked wrong." M.S. appeared upset and went into her bedroom and closed the door. G.S. said this incident was abnormal because defendant and M.S. previously did not associate with each other.

¶ 11 Warsaw police chief Wes Woolson, who was previously employed as police officer in the city where M.S. lived, testified that he responded to a 911 call placed by M.S. on May 17, 2014. At M.S.'s residence, defendant answered the door and directed Woolson to M.S.'s bedroom. Woolson announced his presence and asked M.S. to exit her bedroom to speak with him. M.S. hesitantly opened the door, and Woolson noticed that M.S. had been crying and appeared scared. M.S. told Woolson that she and defendant were doing laundry earlier in the evening when defendant "grabbed her from behind, put his hands under her shirt and under her bra next to her skin." M.S. told defendant to stop, and defendant responded, "What? What's wrong?" M.S. broke away from defendant, ran from the laundry room, and locked herself in her bedroom.

¶ 12 On cross-examination, Woolson clarified that M.S. said defendant placed his hands under her shirt, inside her bra, and touched her breasts. On redirect examination, the State asked:

"Q. Based on the circumstances that were presented to you from [M.S.], do you have any other reason to believe this defendant shoved his hand up her shirt and was holding her breast for any other reason other than sexual arousal?
A. No, ma'am."

Defense counsel objected to the State's question arguing that it called for speculation. The court overruled the objection. Then, on further redirect examination, the State asked:

"Q. In regards to whether she knew if he was sexually aroused or not, was there any questions you could think of to ask her about that?
A. No, I couldn't. It was-she was traumatized from the situation that was presented to me."

Defense counsel again objected. The court struck the question but allowed the State to reword it. The State asked:

"Q. Was there anything that you could think of to ask [M.S.] whether her stepfather was sexually aroused as he put his hands up her shirt and held her breasts?
A. No, ma'am.
Q. Did it seem obvious to you that that was for sexual arousal?"

Defense counsel objected to this question, and the State concluded its examination without pursuing a response.

¶ 13 During further recross-examination by defense counsel, Woolson stated that he did not ask M.S. if she noticed that defendant had an erection. Thereafter, the State asked Woolson if this was the only way to prove arousal. Woolson said it was not. Defense counsel objected to Woolson's answer, and the court overruled the objection. Woolson clarified that he would not have posed this type of question to M.S. as it was the type that the child advocacy specialists asked.

¶ 14 Defendant elected not to testify, and the case proceeded to closing arguments and deliberations. The jury found defendant guilty of aggravated criminal sexual abuse. Before the sentencing hearing, defendant filed a motion for new trial. In the motion, defendant argued that the evidence was insufficient to sustain his conviction beyond a reasonable doubt. The court denied the motion and, after conducting a sentencing hearing, imposed a sentence of 4 years' probation and 180 days in jail with credit for 92 days served. Defendant appeals.

¶ 15 ANALYSIS

¶ 16 I. Opinion Testimony

¶ 17 Defendant argues the circuit court erred when it overruled defense counsel's objection to Woolson's opinion testimony regarding defendant's intent because it was not based on any personal observations and Woolson was not qualified as an expert. Defendant failed to preserve this issue because he did not raise it in a posttrial motion ( People v. Enoch , 122 Ill. 2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988) ), but he argues that it is reversible plain error. We take no position on the propriety of Woolson's testimony because defendant cannot establish prejudice under either prong of the plain-error analysis.

¶ 18 We may excuse defendant's procedural default of a substantial error

"(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.' " People v. Sebby , 2017 IL 119445, ¶ 48 [417 Ill.Dec. 756, 89 N.E.3d 675] (quoting People v. Piatkowski , 225 Ill. 2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007) ).

We begin our analysis on whether defendant can demonstrate prejudice for reversal under the first prong of plain error. People v. White , 2011 IL 109689, ¶ 134, 353 Ill.Dec. 517, 956 N.E.2d 379 (reviewing court need not determine whether there was error where defendant cannot establish prejudice).

¶ 19 Defendant argues the alleged error is reversible under the first prong of plain-error review because the evidence was "so closely balanced that the error in Chief Woolson providing lay opinion testimony alone threatened to tip the scales of justice against [him]." To determine whether the trial evidence was close, we must examine the totality of the evidence and "conduct a qualitative, commonsense assessment of it within the context of the case." Sebby , 2017 IL 119445, ¶ 53, 417 Ill.Dec. 756, 89 N.E.3d 675.

¶ 20 To convict defendant of aggravated criminal sexual abuse, the State must prove beyond a reasonable doubt that defendant (1) knowingly touched or fondled the breasts of the victim, (2) for the purpose of sexual gratification or arousal, (3) the victim was at least 13 years of age but under 17 years of age, and (4) defendant was at least 5 years older than the victim. 720 ILCS 5/11-0.1, 11-1.60(d) (West 2014). Generally, the intent element-defendant committed the act for the purpose of sexual gratification or arousal-cannot be proved by direct evidence. See People v. Sanchez , 292 Ill. App. 3d 763, 771, 226 Ill.Dec. 737, 686 N.E.2d 367 (1997). It is typically inferred from circumstantial evidence such as defendant's conduct. In re Matthew K. , 355 Ill. App. 3d 652, 655-57, 291 Ill.Dec. 242, 823 N.E.2d 252 (2005).

¶ 21 Defendant focuses his closely balanced argument on the evidence of the second element regarding his intent. Defendant contends the evidence of his intent to attain sexual gratification or arousal was derived from Woolson's opinion testimony and evidence of an uncharged incident that M.S. believed to be the result of an accident. Therefore, according to defendant, the evidence was closely balanced. We disagree.

¶ 22 Setting aside the opinion testimony at issue, we find that the evidence of defendant's intent was not close. As defendant notes, M.S. and G.S. testified to defendant's prior incident of inappropriate contact with M.S. Both witnesses indicated that defendant unexpectedly picked M.S. up and swung her in the air. M.S. further noted that defendant's hand touched an area under her bra. While M.S. initially believed that defendant's inappropriate contact was accidental, her belief dissipated as she noticed that her relationship with defendant changed. After the January 2014 incident, M.S. noticed that defendant treated her "overly nicely," and M.S. no longer felt safe around defendant. G.S.'s observation that defendant's actions were "not right" further dispel any suggestion that this inappropriate contact was accidental.

¶ 23 Four months after the swinging incident, when defendant and M.S. were alone in the house, defendant made the unusual request that M.S. help him with the laundry. Once in the laundry room, defendant suspiciously and repeatedly asked M.S. if she could "keep a secret." Once M.S. provided a satisfactory response, defendant attempted to reach up her shirt, and M.S. pushed defendant's hand away and attempted to walk away. Defendant then grabbed M.S., placed his hands under M.S.'s shirt and bra, and "cupped" M.S.'s breasts. When M.S. told defendant to stop, he sarcastically responded, "What am I doing?"

¶ 24 Together, this evidence readily established that defendant touched M.S.'s breasts for sexual gratification or arousal. Moreover, no other intent can be imagined from these facts. Were this a tort case, we would say "res ipsa loquitur ." On these facts, the act is overwhelming evidence of the intent. Defendant was neither a physician conducting a medical examination of M.S. nor a tailor fitting M.S. for clothing. The jury could reasonably and readily infer from this evidence, without considering Woolson's testimony, that defendant had touched M.S.'s breasts for the purpose of sexual gratification or arousal. Applying "a qualitative, commonsense assessment of [the evidence] within the context of [this] case," we find that the evidence of intent is far from being closely balanced. See Sebby , 2017 IL 119445, ¶ 53, 417 Ill.Dec. 756, 89 N.E.3d 675. Having found the evidence of intent overwhelming and no prejudice to defendant, we reject his first prong plain-error argument.

¶ 25 Defendant also argues that reversal is warranted under the second prong because the alleged error "is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process." (Internal quotation marks omitted.) People v. Naylor , 229 Ill. 2d 584, 593, 323 Ill.Dec. 381, 893 N.E.2d 653 (2008). No! To obtain relief under the second prong, defendant must demonstrate "that the error was a structural error." People v. Eppinger , 2013 IL 114121, ¶ 19, 368 Ill.Dec. 529, 984 N.E.2d 475 (citing People v. Thompson , 238 Ill. 2d 598, 613-14, 345 Ill.Dec. 560, 939 N.E.2d 403 (2010) ). "Structural errors are systemic, serving to ' "erode the integrity of the judicial process and undermine the fairness of the defendant's trial." ' " Thompson , 238 Ill. 2d at 608, 345 Ill.Dec. 560, 939 N.E.2d 403 (quoting People v. Glasper , 234 Ill. 2d 173, 197-98, 334 Ill.Dec. 575, 917 N.E.2d 401 (2009), quoting People v. Herron , 215 Ill. 2d 167, 186, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005) ). Such errors render "a criminal trial fundamentally unfair or an unreliable means of determining guilt or innocence." Id. at 609, 345 Ill.Dec. 560, 939 N.E.2d 403. Examples of structural error include the complete denial of counsel, trial before a biased judge, racial discrimination in the selection of a grand jury, denial of self-representation at trial, denial of a public trial, and a defective reasonable doubt instruction. Id. (citing Washington v. Recuenco , 548 U.S. 212, 218 n.2, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ).

¶ 26 Defendant cites no case law holding the admission of improper lay opinion testimony is structural error. Moreover, we find that this alleged error did not erode the integrity of the judicial process or undermine the fairness of defendant's trial. Defendant's alleged error does not warrant reversal under the second prong of the plain-error analysis.

¶ 27 II. Sufficiency of the Evidence

¶ 28 Defendant argues the State failed to prove his guilt beyond a reasonable doubt because, excepting the allegedly erroneous testimony of Woolson, the State failed to introduce any evidence that defendant's act was done for the purpose of sexual gratification or arousal.

¶ 29 In a challenge to the sufficiency of the evidence, we apply the familiar standard from People v. Collins , 106 Ill. 2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). Our inquiry is " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) Id. (quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). We draw all reasonable inferences from the evidence in favor of the prosecution and we will not substitute our judgment for that of the trier of fact on questions involving the weight of the evidence or credibility of the witnesses. People v. Martin , 2011 IL 109102, ¶ 15, 353 Ill.Dec. 247, 955 N.E.2d 1058 ; People v. Jackson , 232 Ill. 2d 246, 280-81, 328 Ill.Dec. 1, 903 N.E.2d 388 (2009). In determining defendant's guilt, the trier of fact may draw inferences that flow normally from the evidence before it. Jackson , 232 Ill. 2d at 281, 328 Ill.Dec. 1, 903 N.E.2d 388. However, the trier of fact need not search out all possible explanations consistent with innocence. Id. A defendant's conviction is subject to reversal only where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt. People v. Campbell , 146 Ill. 2d 363, 375, 166 Ill.Dec. 932, 586 N.E.2d 1261 (1992).

¶ 30 Once again, defendant attacks only the sufficiency of the evidence of the intent element-the act was done for the purpose of sexual gratification or arousal. 720 ILCS 5/11-0.1, 11-1.60(d) (West 2014). As set forth above, no rational jury would have acquitted defendant, even without hearing the alleged improper lay opinion testimony.

¶ 31 CONCLUSION

¶ 32 For the foregoing reasons, we affirm the judgment of the circuit court of Hancock County.

¶ 33 Affirmed.

Presiding Justice Carter and Justice McDade concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrance T. NORWOOD, Defendant-Appellant.
    NO. 4-15-0883
    Appellate Court of Illinois, Fourth District.
    Filed May 9, 2018
    Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel, of State Appellate Defender's Office, of Springfield, for appellant.
    Jay Scott, State's Attorney, of Decatur (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE TURNER delivered the judgment of the court, with opinion.

that that gun was immediately accessible to the defendant."

¶ 10 On September 17, 2015, defendant filed a posttrial motion, arguing the trial court erred in finding him guilty of armed violence because the weapon in question was not immediately accessible to him at the time of his encounter with the police.

¶ 11 On October 14, 2015, the trial court denied defendant's posttrial motion and sentenced defendant to concurrent 16-year prison sentences for defendant's two armed violence convictions.

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 A. Armed Violence

¶ 15 We first address defendant's argument regarding his armed violence convictions. Section 33A-2(a)(1) of the Criminal Code of 2012 ( 720 ILCS 5/33A-2(a) (West 2014) ) states: "A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law, except [certain excluded offenses]." According to the statute, a person is considered "armed with a dangerous weapon" when "he or she carries on or about his or her person or is otherwise armed with a Category I, Category II, or Category III weapon." 720 ILCS 5/33A-1(c)(1) (West 2014). Our supreme court has interpreted the meaning of "otherwise armed" as follows:

"A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. [Citation.] Without a weapon at hand, the felon is not faced with such a deadly decision. Hence, we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon." (Emphases in original.) People v. Condon , 148 Ill. 2d 96, 109-10, 170 Ill.Dec. 271, 592 N.E.2d 951, 958 (1992).

¶ 16 Although defendant was found in a bedroom with a loaded rifle, he argues the trial court erred in finding he was guilty of armed violence because the rifle was not immediately accessible to him at the moment the police entered his bedroom because he was 10 feet from the rifle, and it was blocked by the bed. Defendant argues the trial court erred by considering whether the rifle was immediately accessible to defendant when the police entered the residence prior to seeing defendant.

¶ 17 Defendant cites this court's opinion in People v. Neylon , 327 Ill. App. 3d 300, 261 Ill.Dec. 200, 762 N.E.2d 1127 (2002), as authority for the proposition that the trial court cannot look back in time before the police officer encountered defendant to determine if a weapon was immediately accessible. Before discussing this court's decision in Neylon , a brief review of our supreme court's prior decisions on this issue is necessary.

¶ 18 In Condon , the police executed a search warrant at the defendant's home. Defendant was in the kitchen. Firearms were found in the house but none were found in the kitchen or on defendant's person. Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951. According to the supreme court, the defendant could not have used the guns as they were too far removed from his location in the kitchen. Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951. The court noted "[t]he intended purpose of the armed violence statute is to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the felony victim resists. [Citation.] That deterrent purpose is not served under the circumstances of this case ." (Emphasis added.) Condon , 148 Ill. 2d at 109, 170 Ill.Dec. 271, 592 N.E.2d 951. The supreme court noted:

"Were we to find the presence of guns in the house with the cocaine enough to violate the armed violence statute, such a finding would be contrary to the purpose for which the statute was enacted. Rather, we find that defendant would have had to carry a weapon on his person or alternatively to have had 'immediate access to' or 'timely control over' a weapon when the police entered to have been 'otherwise armed' for purposes of the statute." (Emphasis added.) Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951.

¶ 19 In People v. Harre , 155 Ill. 2d 392, 394, 185 Ill.Dec. 550, 614 N.E.2d 1235, 1236-37 (1993), after executing a search warrant on an isolated home in the country, seizing over 20,000 grams of cannabis, and arresting two of the home's occupants, police officers maintained a watch outside the home for defendant and his cousin, who the police learned were expected to be returning to the house.

¶ 20 The driveway to the house was approximately 500 feet long and was gated halfway to the house. At approximately 1:25 a.m., two officers saw a car rapidly approaching the gate. The car stopped at the gate. The officers then heard a car door open and close and the gate being opened. The car then continued up the driveway. Harre , 155 Ill. 2d at 394, 185 Ill.Dec. 550, 614 N.E.2d 1235.

"As the car approached the house, defendant was observed riding on the passenger-side hood of the car, with his legs dangling between the passenger door and the wheel well. Defendant jumped down off the hood and took two steps towards the rear of the car until he was next to the slightly more than half-opened window of the passenger-side door. An officer, with weapon drawn, then identified himself and instructed defendant to return to the hood of the car and place his hands there." Harre , 155 Ill. 2d at 394-95, 185 Ill.Dec. 550, 614 N.E.2d 1235.

On the front seat of the vehicle, the police found a .22-caliber pistol and a .22-caliber rifle. Harre , 155 Ill. 2d at 395, 185 Ill.Dec. 550, 614 N.E.2d 1235. The police also seized two garbage bags of cannabis from the car. Harre , 155 Ill. 2d at 395, 185 Ill.Dec. 550, 614 N.E.2d 1235.

¶ 21 Defendant was found guilty of armed violence. The supreme court noted "[t]he jury's factual determination that defendant was armed was supported by the testimony of two officers that the weapons on the front seat of the car were within defendant's immediate reach as defendant stood next to the car door and partially opened car window." Harre , 155 Ill. 2d at 396, 185 Ill.Dec. 550, 614 N.E.2d 1235. However, the appellate court found defendant could not have reached the firearms. Harre , 155 Ill. 2d at 396, 185 Ill.Dec. 550, 614 N.E.2d 1235. Our supreme court found the appellate court erred in substituting its judgment for that of the jurors.

¶ 22 The supreme court distinguished the situation in Harre from Condon . In Condon , the State had no evidence the defendant displayed or showed a gun during any drug delivery. Harre , 155 Ill. 2d at 400, 185 Ill.Dec. 550, 614 N.E.2d 1235 (citing Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951 ). The court stated:

"[T]he evidence here, although circumstantial, clearly supported the inference that defendant had moments before his apprehension been riding in the car on his way to a drug delivery with a weapon inches from his grasp . Such circumstantial evidence was not so clearly unreasonable, improbable, or unsatisfactory that no rational trier of fact could have found beyond a reasonable doubt that defendant had immediate access to or timely control over such weapons while riding in the car enroute to the delivery of the cannabis. [Citation.] Thus again in contrast to Condon , the evidence supported the jury's finding that defendant had immediate access to and control over the weapons during the course of the underlying felony.
Finally, defendant had taken two steps toward the car door and was parallel to it when stopped by the officer's announcement. Thus, defendant was moving towards his weapons and was only a moment from opening the car door, which would have removed any possible remaining obstruction to defendant's unfettered access to and unrestricted control over such weapons . Defendant argues that because he did not foolishly attempt to open the door or reach through the window in face of the officer's drawn weapon, he was not guilty of armed violence. However, the determination of whether a defendant is armed is not made at the moment of arrest . Rather, armed violence occurs if a defendant commits a felony while having on or about his person a dangerous weapon or if a defendant is otherwise armed. We would completely eviscerate the deterrent purpose of the armed violence statute if we were to require police officers to wait to announce their presence and effect an arrest until a defendant's access and control over a readily available weapon had ripened into the temptation to take actual physical possession, which would invite rather than deter violence." (Emphases in original and added.) Harre , 155 Ill. 2d at 400-01, 185 Ill.Dec. 550, 614 N.E.2d 1235.

In Harre , the supreme court made clear the time frame to be looked at in determining whether a defendant had immediate access to a weapon was not simply the moment a police officer actually encountered a defendant. However, the supreme court did not specify the scope of time to be considered.

¶ 23 In People v. Smith , 191 Ill. 2d 408, 247 Ill.Dec. 458, 732 N.E.2d 513 (2000), the defendant dropped a handgun out of his apartment window while police officers were approaching his apartment building to execute a search warrant on his apartment . The police officers saw defendant drop the gun out of the window. The gun landed on the roof of the building's porch and slid off the roof to the ground. Smith , 191 Ill. 2d at 410, 247 Ill.Dec. 458, 732 N.E.2d 513. Based on these facts, defendant was not in a ground-floor apartment. After entering the defendant's apartment, the police found cocaine and cannabis in the apartment's living room. They found the defendant in a bedroom near a window. Smith , 191 Ill. 2d at 410, 247 Ill.Dec. 458, 732 N.E.2d 513. The trial court found defendant guilty of armed violence. Smith , 191 Ill. 2d at 410, 247 Ill.Dec. 458, 732 N.E.2d 513.

¶ 24 The supreme court reversed the conviction after analyzing its prior opinions in Condon and Harre . According to the majority opinion, the court found the deterrent purpose of the statute was not served in Condon based on the facts in that case.

"As in the instant case, the police in Condon executed a search warrant to seize illegal drugs located in the defendant's residence. When police entered the residence , Condon was standing in the apartment with no weapon on or about his person. Although numerous guns were found elsewhere in the residence, we held that Condon's conviction for armed violence could not be sustained because he did not have ' "immediate access to" or "timely control over" a weapon when the police entered.' " (Emphasis added.) Smith , 191 Ill. 2d at 412, 247 Ill.Dec. 458, 732 N.E.2d 513 (quoting Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951 ).

The majority then distinguished the situation in Harre from the situation in Condon . According to the court:

"[I]n [ Harre ], we affirmed the armed violence conviction of a defendant who was apprehended by police during a drug raid as he made a move toward his car, which contained two guns. In our opinion in Harre , we noted that at the time police confronted the defendant in Condon , Condon did not have the 'intent and capability to maintain control and possesion' of the weapons, while Harre clearly did." Smith , 191 Ill. 2d at 412, 247 Ill.Dec. 458, 732 N.E.2d 513 (quoting Harre , 155 Ill. 2d at 399, 185 Ill.Dec. 550, 614 N.E.2d 1235 ).

Applying the reasoning from Condon and Harre to the facts before it, the majority concluded the defendant did not commit the offense of armed violence, stating:

"Defendant did not have ' "immediate access to" or "timely control over" a weapon when the police entered ' ( Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951 ), because he dropped the gun out of the window as soon as he became aware that police were approaching. For this same reason, defendant also did not have the 'intent and capability to maintain control and possession' of the weapon, as this court has required. Harre , 155 Ill. 2d at 399-401, 185 Ill.Dec. 550, 614 N.E.2d 1235. Permitting an armed violence conviction to stand against a felon such as defendant, who exhibited no propensity to violence and dropped the unloaded gun out of the window as the police approached his apartment to search for drugs, would not serve, but rather would frustrate, the statute's purpose of deterring criminals from involving themselves and others in potentially deadly situations." (Emphasis added.) Smith , 191 Ill. 2d at 412-13, 247 Ill.Dec. 458, 732 N.E.2d 513.

¶ 25 Justice McMorrow filed a partial concurrence and partial dissent in Smith , which was joined by two other justices. Justice McMorrow wrote that the majority's opinion overruled, sub silentio , the supreme court's decision in Harre . Smith , 191 Ill. 2d at 419, 247 Ill.Dec. 458, 732 N.E.2d 513 (McMorrow, J., concurring in part and dissenting in part, joined by Miller and Freeman, JJ.). After summarizing the facts in Harre , Justice McMorrow stated:

"This court in Harre determined that the defendant was guilty of armed violence. This result was based on two conclusions. First, the evidence showed that the defendant was 'armed,' for purposes of the armed violence statute, based on the police officers' lay opinion testimony that the weapons on the front seat of the car were within the defendant's immediate reach as the defendant stood next to the car door and partially opened car window. Second, and more important for purposes of this case, the court determined that the defendant was guilty of armed violence because 'the determination of whether a defendant is armed is not made at the moment of arrest .' (Emphasis added.) [Citation.] * * *
The majority errs, in the instant case, when it emphasizes the fact that the defendant was not armed at the time of his arrest. As Harre , which postdates Condon , makes absolutely clear, the only question that must be answered under the armed violence statute is whether the defendant was armed at the time of the commission of the felony. In the case at bar, the police officer's testimony that he saw the defendant throwing the gun out of the window clearly established that the defendant was armed during the commission of the possession offense. As in Harre , the defendant in this case had, 'moments before his apprehension,' been armed with a handgun and in possession of a controlled substance. The majority's decision is thus at odds with, and indeed overrules, Harre ." Smith , 191 Ill. 2d at 419-20, 247 Ill.Dec. 458, 732 N.E.2d 513.

¶ 26 We do not agree the majority opinion overruled, sub silentio , the supreme court's decision in Harre as stated by Justice McMorrow in her partial dissent and partial concurrence. It is first important to note Justice McMorrow's partial dissent is based in large part on the faulty premise that the majority in Smith held the moment of a defendant's arrest was the only relevant moment in determining whether a defendant could be guilty of armed violence. This is incorrect. The majority's focus was on the time the police entered the defendant's apartment to execute the search warrant, not the moment the defendant was arrested. This was the standard stated by the supreme court in Condon .

¶ 27 From our review of Condon and Harre , Harre did not broaden the time frame to be considered with regard to a defendant inside a home during the execution of a search warrant. The language from Harre relied upon by Justice McMorrow was in response to Harre's argument that he was not guilty of armed violence "because he did not foolishly attempt to open the door or reach through the window in face of the officer's drawn weapon." It appears the supreme court in Harre was simply restating its prior holding in Condon in the context of a street encounter by police officers.

¶ 28 Finally, the majority in Smith did not overrule, sub silentio , Harre unless Harre overruled, sub silentio , Condon . From our review of these cases, neither of these things happened. The majority in Smith simply relied on the analysis the supreme court applied in Condon , which, like Smith , involved a defendant inside a house during the execution of a search warrant. Based on the supreme court's analysis in Condon , the defendant in Smith could not have been guilty of armed violence because the defendant did not have immediate access to a weapon either when the police entered his apartment or at any point while the police were in the apartment.

¶ 29 This brings us back to defendant's reliance on this court's decision in Neylon . In Neylon , the defendant was arrested outside his house after the police received a "shots fired" report. Neylon , 327 Ill. App. 3d at 303, 261 Ill.Dec. 200, 762 N.E.2d 1127. After defendant's arrest, the police found a .38-caliber pistol inside the house in a bedroom closet. Neylon , 327 Ill. App. 3d at 303, 261 Ill.Dec. 200, 762 N.E.2d 1127. The defendant argued his armed violence (armed with a firearm) conviction should be reversed because the State did not prove him guilty beyond a reasonable doubt. Pursuant to Condon , this court noted that a defendant must be personally armed or have immediate access to or timely control over a weapon. Neylon , 327 Ill. App. 3d at 308, 261 Ill.Dec. 200, 762 N.E.2d 1127 (citing Condon , 148 Ill. 2d at 110, 170 Ill.Dec. 271, 592 N.E.2d 951 ). Neylon does not reflect the State presented any evidence about when the defendant was last personally armed or had immediate access to the weapon found in the house.

¶ 30 This court also distinguished the facts in Neylon from the situation in Harre because of the defendant's accessibility to the weapon in Harre both at the moment he encountered the police and in the moments leading up to the encounter. According to this court's analysis in Neylon:

"In this case it is true the gun was not immediately accessible to defendant. When he was arrested outside the house, the gun was in the house, in a closet and unloaded. The ammunition was not kept with the gun. Even if there were evidence defendant had been in the house minutes before his arrest, the gun was still not immediately accessible to him unless he were standing next to the open closet door and the gun were loaded. Under the facts of this case, the precedent of Smith suggests the danger the armed violence statute seeks to curb was not present and the evidence was not sufficient to support a conviction for armed violence (possession of a firearm)." Neylon , 327 Ill. App. 3d at 309, 261 Ill.Dec. 200, 762 N.E.2d 1127.

We note Condon required this same result.

¶ 31 This court's analysis reversing the defendant's armed violence conviction could have ended at that point. However, the majority went on to address Justice McMorrow's partial concurrence and partial dissent in Smith , stating it agreed with Justice McMorrow's criticism that the majority decision in that case overruled, sub silentio , Harre 's holding that the court is not limited to looking at the moment of arrest to determine whether a defendant is armed. Neylon , 327 Ill. App. 3d at 309-10, 261 Ill.Dec. 200, 762 N.E.2d 1127. Considering the factual situation in Neylon did not involve the execution of a search warrant, the justices in the majority in Neylon had no reason to analyze whether Justice McMorrow's bold assertion in her partial concurrence and partial dissent, which was joined by Justice Miller and Justice Freeman, was accurate. However, the facts and arguments in this case require this court to further analyze Justice McMorrow's reasoning and this court's assessment of her criticism.

¶ 32 As explained earlier, Justice McMorrow's analysis was based on a false premise because the majority in Smith did not hold that a court should only look at the moment of arrest to determine whether a defendant is armed. Instead, Smith merely followed the precedent established in Condon that it could look back to the moment the police entered the residence while executing the search warrant, not just the moment the police physically encountered or arrested the defendant.

¶ 33 In this case, like Condon and Smith , the police were executing a search warrant on defendant's home. Contrary to defendant's suggestion, the question before this court is not whether the rifle was immediately accessible to defendant when the police officer opened the bedroom door. Instead, the question is whether the State established beyond a reasonable doubt that the rifle was immediately accessible to defendant after the police entered his home.

¶ 34 This court will not reverse the trial court's determination defendant was guilty of armed violence unless the evidence, when "viewed in a light most favorable to the State, was so palpably contrary to the verdict, so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant's guilt." Harre , 155 Ill. 2d at 397-98, 185 Ill.Dec. 550, 614 N.E.2d 1235. Based on the evidence in this case, the trial court did not err in finding defendant guilty of armed violence.

¶ 35 The evidence supports a reasonable inference the rifle in the bedroom was immediately accessible to defendant during the period between the police officers entering the home and opening the bedroom door. Lofton told the police defendant slept on the same side of the bed as the rifle. He was still in bed when Lofton got up that morning to let their dog out. When Walter opened the door to the bedroom, defendant was standing naked with his hands up in the air. Based on this evidence, the trial court could have reasonably inferred defendant heard the police entering the house and got up from the bed in a manner making the rifle immediately accessible. Further, after Walter opened the bedroom door and ordered defendant to get on the ground, defendant instead laid down on the bed, decreasing the distance between the rifle and defendant. Defendant did not tell Walter anything about the rifle in the bedroom.

¶ 36 We will not substitute our judgment for that of the trier of fact, and we will not reverse a trial court's judgment if any rational trier of fact could have reached the conclusion below, considering all of the evidence in the light most favorable to the prosecution. Harre , 155 Ill. 2d at 398, 185 Ill.Dec. 550, 614 N.E.2d 1235. As a result, we affirm the trial court's determination the State proved defendant guilty of armed violence beyond a reasonable doubt.

¶ 37 B. Fines

¶ 38 We next address defendant's argument the circuit clerk improperly imposed several fines on defendant. Defendant argues these fines should be vacated. Citing People v. Daily , 2016 IL App (4th) 150588, ¶ 30, 411 Ill.Dec. 706, 74 N.E.3d 15, the State concedes the following circuit clerk imposed fines should be vacated: $15 state police operations assessment ( People v. Millsap , 2012 IL App (4th) 110668, ¶ 31, 366 Ill.Dec. 229, 979 N.E.2d 1030 ); $5 drug court assessment, which includes the $0.25 "Clerk Op Deduction" ( People v. Carter , 2016 IL App (3d) 140196, ¶ 52, 407 Ill.Dec. 22, 62 N.E.3d 267 ); $50 court finance assessment ( People v. Smith , 2014 IL App (4th) 121118, ¶ 54, 385 Ill.Dec. 367, 18 N.E.3d 912 ); $5 youth diversion assessment ( People v. Jernigan , 2014 IL App (4th) 130524, ¶ 45, 387 Ill.Dec. 958, 23 N.E.3d 650 ); $30 child advocacy assessment, which includes $1.50 of the $12 "Clerk Op Add-Ons" ( People v. Jones , 397 Ill. App. 3d 651, 660, 921 N.E.2d 768, 775, 336 Ill.Dec. 912 (2009) ); $10 for "Nonstandard" assessment, which includes $0.50 of the $12 "Clerk Op Add-Ons" ( People v. Williams , 2013 IL App (4th) 120313, ¶ 19, 372 Ill.Dec. 424, 991 N.E.2d 914 ); $10 medical assessment ( People v. LaRue , 2014 IL App (4th) 120595, ¶ 57, 381 Ill.Dec. 550, 10 N.E.3d 959 ); $10 anti-crime assessment ( Jernigan , 2014 IL App (4th) 130524, ¶ 48, 387 Ill.Dec. 958, 23 N.E.3d 650) ; $160 lump-sum surcharge ( People v. Warren , 2016 IL App (4th) 120721-B, ¶¶ 129 131, 404 Ill.Dec. 21, 55 N.E.3d 117 ); $100 violent crime victims assistance assessment ( Warren , 2016 IL App (4th) 120721-B, ¶ 142, 404 Ill.Dec. 21, 55 N.E.3d 117 ); $30 juvenile records expungement assessment (total of $10 of the $12 "Clerk Op Add-Ons", $10 of the $70 state's attorney assessment, and $10 state police services assessment) ( Carter , 2016 IL App (3d) 140196, ¶¶ 53-54, 407 Ill.Dec. 22, 62 N.E.3d 267) ; and $15 Court Appointed Special Advocates assessment ( 55 ILCS 5/5-1101(f-10) (West 2014) ). We accept the State's concession.

¶ 39 III. CONCLUSION

¶ 40 For the reasons stated, we affirm defendant's convictions but remand with directions for the trial court to vacate the fines improperly imposed by the circuit clerk. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a) (West 2016).

¶ 41 Affirmed as modified.

¶ 42 Cause remanded with directions.

Justices Knecht and DeArmond concurred in the judgment and opinion.