text:
    IN RE APPLICATION FOR A TAX DEED
    (As-Is Properties, Ltd., Petitioner-Appellant, v. Robert W. Street Jr.; Ruth Street; Ford Motor Credit Company, LLC; Unknown Occupants; Unknown Owners or Parties Interested; and Nonrecord Claimants, Respondents-Appellees).
    NO. 5-17-0170
    Appellate Court of Illinois, Fifth District.
    Opinion Filed: June 5, 2018 Modified Upon Denial of Rehearing: January 7, 2019
    Glenn R. Tetzlaff, Tetzlaff, Cervantez and Associates, P.C., 500 North Holland Street, Marion, IL 62959, Attorney for Appellant
    C. Mart Watson, Law Offices of Watson & Murphy, 1312 Jackson Street, P.O. Box 59, Eldorado, IL 62930, Attorney for Appellees
   JUSTICE OVERSTREET delivered the judgment of the court, with opinion.

¶ 1 The petitioner, As-Is Properties, Ltd. (As-Is Properties), appeals the circuit court's order granting equitable redemption in a tax deed sale proceeding to the property's owners, the respondents, Robert W. Street Jr. and Ruth Street, and the circuit court's order denying As-Is Properties' motion to expunge the redemption. On appeal, As-Is Properties claims that the circuit court erred in granting equitable redemption because the Streets failed to tender funds to redeem the property within the statutory period of redemption provided under the Property Tax Code (Code) ( 35 ILCS 200/21-350 (West 2016) ). As-Is Properties seeks reversal and remand to the circuit court for expungement of the redemption and entry of an order directing the issuance of a tax deed. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 In 2013, the Streets failed to pay the 2012 real estate taxes due and owing on their home located at 1518 Fisk Street, in Eldorado, Illinois. In January 2014, the Saline County Treasurer sold the Streets' home at a tax sale and issued a certificate of purchase to As-Is Properties for the sum of the 2012 back taxes due and payable in 2013. On May 20, 2016, As-Is Properties filed a petition for the issuance of a tax deed, alleging that it held the certificate of purchase issued by the county clerk and that the time for redemption of the certificate would expire on October 7, 2016. As-Is Properties requested the circuit court to enter an order directing the county clerk to issue a property tax deed to As-Is Properties if the property had not been redeemed within the time and in the manner provided by law. The corresponding "Take Notice" document, also filed with the circuit court on May 20, 2016, provided, in pertinent part:

"THIS PROPERTY HAS BEEN SOLD FOR DELINQUENT TAXES
Property located at 1518 Fisk Street, Eldorado, IL 62930, Saline County, Illinois.
* * *
This notice is to advise you that the above property has been sold for delinquent taxes and that the period of redemption from the sale will expire on October 7, 2016.
* * *
This notice is also to advise you that a petition has been filed for a tax deed which will transfer title and the right to possession of this property if redemption is not made on or before October 7, 2016.
This matter is set for hearing in the Circuit Court of this County in HARRISBURG, Illinois on October 21, 2016 at 9:00 AM.
You may be present at this hearing, but your right to redeem will have already expired at that time.
YOU ARE URGED TO REDEEM IMMEDIATELY TO PREVENT LOSS OF PROPERTY
Redemption can be made at any time on or before October 7, 2016 by applying to the County Clerk of Saline County, Illinois at the Office of the County Clerk in Harrisburg, Illinois.
For further information contact the County Clerk." (Emphasis in original.)

¶ 4 The delinquent taxes were not redeemed by October 7, 2016. On October 12, 2016, while preparing to travel to the Saline County Clerk's Office to pay the 2012 taxes, Ruth Street realized that she had been confused by the differing dates on the "Take Notice" and that the time for redemption may have passed. Ruth Street called the county clerk's office and learned that the redemption period had indeed expired five days earlier. Upon realizing the mistake, the Streets then consulted counsel, and on October 20, 2016, they filed a petition asking the circuit court to use its equitable power to extend the statutory period of redemption. In their petition, the Streets alleged that they had erroneously understood that the "Take Notice" allowed them until October 21, 2016, to redeem their home from the tax sale. The Streets also alleged that they had continued to pay taxes on their home even after As-Is Properties received its certificate of purchase in January 2014. The Streets further alleged that the approximate fair market value of their real estate subject to the tax sale was $30,000 and the amount required to redeem the real estate was $1316.97. The Streets alleged that they would suffer irreparable damage if not allowed to redeem their real estate from the tax sale. When the Streets filed their petition to extend the statutory period for redemption, no deed had issued, and As-Is Properties' petition for issuance of a tax deed was pending.

¶ 5 The October 21, 2016, hearing was continued by agreement, and the parties were permitted to provide the court with oral and written arguments. After the parties had been given the opportunity to present their arguments, the circuit court granted the Streets' petition and entered an order extending the period of redemption until February 9, 2017. On February 6, 2017, the Streets paid the delinquent amount owed and redeemed their property.

¶ 6 On March 1, 2017, As-Is Properties filed a motion to reconsider the order extending the statutory period of redemption and to expunge redemption of the property. On April 6, 2017, the circuit court denied the motion to reconsider. On May 5, 2017, As-Is Properties filed a timely notice of appeal.

¶ 7 ANALYSIS

¶ 8 As-Is Properties argues that because it complied with the mandates in sections 22-10 through 22-40(a) of the Code, the circuit court was precluded from injecting its equity analysis. See 35 ILCS 200/22-10 (West 2016) (notice of expiration of period of redemption-noting that redemption can be made at any time on or before redemption date); id. § 22-15 (service of notice); id. § 22-20 (proof of service of notice; publication of notice); id. § 22-30 (petition for deed); id. § 22-35 (reimbursement of county or municipality before issuance of tax deed); id. § 22-40 (issuance of deed; possession). As-Is Properties argues that the express language in section 22-40(a) mandated the circuit court to find that the redemption period had expired, that the property had not been redeemed, and that the petitioner had complied with all required provisions. See id. § 22-40(a) ("If the redemption period expires and the property has not been redeemed and all taxes and * * * assessments * * * have been paid and all forfeitures and sales * * * have been redeemed and the notices required by law have been given and all advancements of public funds * * * have been paid and the petitioner has complied with all the provisions of law entitling him * * * to a deed, the court shall so find and shall enter an order directing the county clerk on the production of the certificate of purchase and a certified copy of the order, to issue to the purchaser * * * a tax deed."). As-Is Properties further argues that because the exceptions found in section 21-350 of the Code are inapplicable, the Code prohibited the circuit court from applying its general equity power to extend the Streets' final date of redemption. See id. § 21-350 ("[p]roperty sold under this Code may be redeemed at any time before the expiration of 2 years from the date of sale," with enumerated exceptions not applicable here).

¶ 9 We review questions of statutory interpretation de novo . In re Application of the County Treasurer & ex officio County Collector , 378 Ill. App. 3d 842, 850, 317 Ill.Dec. 408, 881 N.E.2d 576 (2007) ( Hawkeye ). Here, pursuant to the Code, if a property's taxes become delinquent, the county may apply for a judgment against and a sale of the property at a public auction (known as a tax sale) to recover the delinquent taxes. See 35 ILCS 200/21-110 (West 2016) ; A.P. Properties, Inc. v. Goshinsky , 186 Ill. 2d 524, 529, 239 Ill.Dec. 600, 714 N.E.2d 519 (1999) ; A.P. Properties, Inc. v. Rattner , 2011 IL App (2d) 110061, ¶ 13, 355 Ill.Dec. 736, 960 N.E.2d 618 ; Hawkeye , 378 Ill. App. 3d at 846, 317 Ill.Dec. 408, 881 N.E.2d 576. Any person owning or claiming a property upon which application for judgment is applied for may pay the taxes and costs to the county collector at any time before the taxes are sold, thereby avoiding the sale. 35 ILCS 200/21-165 (West 2016). "If the property owner does not pay the taxes first, the county may sell the property to the highest bidder, who then becomes liable to the county for the amount bid." Rattner , 2011 IL App (2d) 110061, ¶ 13, 355 Ill.Dec. 736, 960 N.E.2d 618 ; see also 35 ILCS 200/21-190, 21-205, 21-240, 21-260 (West 2016); Goshinsky , 186 Ill. 2d at 529, 239 Ill.Dec. 600, 714 N.E.2d 519. Once the court confirms the sale, the tax buyer receives a certificate of purchase. 35 ILCS 200/21-240, 21-260(c) (West 2016); Goshinsky , 186 Ill. 2d at 529, 239 Ill.Dec. 600, 714 N.E.2d 519 ; Rattner , 2011 IL App (2d) 110061, ¶ 13, 355 Ill.Dec. 736, 960 N.E.2d 618.

¶ 10 "The purchaser at the tax sale does not immediately gain title to the property; rather, there is a grace period where the property owner has the right to 'redeem' the property by paying to the county clerk the delinquent taxes, as well as costs, fees, and interest." Hawkeye , 378 Ill. App. 3d at 846, 317 Ill.Dec. 408, 881 N.E.2d 576 ; see also 35 ILCS 200/21-345(a) (West 2016) ("Property sold under this Code may be redeemed only by those persons having a right of redemption * * *."); 35 ILCS 200/21-350 (West 2016) ("Property sold under this Code may be redeemed at any time before the expiration of 2 years from the date of sale," with certain exceptions); 35 ILCS 200/21-370 (West 2016) (redemption of forfeited property provisions). "If the owner makes a valid redemption, then title to the property remains with the owner, and the tax purchaser is entitled to the redemption money only." Hawkeye , 378 Ill. App. 3d at 846, 317 Ill.Dec. 408, 881 N.E.2d 576. "Upon a timely redemption, the county may refund the tax buyer's payment, thereby releasing the tax buyer's claim on the property." Rattner , 2011 IL App (2d) 110061, ¶ 13, 355 Ill.Dec. 736, 960 N.E.2d 618 ; see also 35 ILCS 200/21-390 (West 2016) ; Goshinsky , 186 Ill. 2d at 530, 239 Ill.Dec. 600, 714 N.E.2d 519. "However, if the owner does not redeem the property within the designated period, then the tax purchaser may petition the court for the deed to the property (known as a tax deed)." Hawkeye , 378 Ill. App. 3d at 846, 317 Ill.Dec. 408, 881 N.E.2d 576. In order to be entitled to a tax deed, the tax purchaser shall deliver to the county clerk a "Take Notice" to be given to the party in whose name the taxes are last assessed, in the form provided for in section 22-5 of the Code ( 35 ILCS 200/22-5 (West 2016) ).

11 A 1990 amendment to section 22-45 of the Code restricts equitable relief with respect to vacating a tax deed (Pub. Act 86-1431 (eff. Sept. 12, 1990) (amending Ill. Rev. Stat. 1989, ch. 120, ¶ 747, now codified at 35 ILCS 200/22-45 ) ), in order to preserve and uphold the policy goals of tax deed merchantability and equity to taxpayers. Hawkeye , 378 Ill. App. 3d at 852-53, 317 Ill.Dec. 408, 881 N.E.2d 576. However, section 22-45, as amended, does not preclude the courts' equitable powers with respect to redemption prior to the issuance of a tax deed. Id. at 853, 317 Ill.Dec. 408, 881 N.E.2d 576. Because the amendment deals solely with the circumstances under which an already-issued tax deed may be voided, it has no bearing on the circumstances under which a court may refuse to issue a tax deed in the first place. Id. at 850, 317 Ill.Dec. 408, 881 N.E.2d 576.

"Given that the legislature's key concern is ensuring that holders of tax deeds may sell them freely without fear of later revocation, it is sensible that the conditions under which a deed may be vacated are much more narrowly circumscribed than the conditions under which a court may decline to issue a deed." Id. at 852, 317 Ill.Dec. 408, 881 N.E.2d 576.

¶ 12 Thus, we recognize the Code's provisions, the statutory time frame found within, and the narrow circumscription of conditions under which a deed may be vacated compared to the conditions under which a court may decline to issue a deed. We also recognize that, despite the Code's provisions, in cases where no tax deed has issued, "there is a clear modern trend of courts declining to apply the redemption requirements strictly in cases involving a taxpayer's detrimental reliance on erroneous statements made by the clerk's office." Id. at 849, 317 Ill.Dec. 408, 881 N.E.2d 576. Illinois courts are "quite willing to interpret the law flexibly in order to achieve equity and fairness in redemption cases." Id.

¶ 13 Ostensibly recognizing this modern trend, As-Is Properties argues that the circuit court erred in exercising its equitable power here, by allowing the Streets to redeem delinquent taxes approximately four months after the statutory period had expired, because the Streets did not rely on erroneous information supplied by the county clerk's office. As-Is Properties argues that detrimental reliance on erroneous statements made by a clerk's office is a prerequisite for the court to decline to apply the Code's redemption requirements strictly. See In re Application of the County Treasurer & ex officio County Collector , 389 Ill. App. 3d 735, 739, 329 Ill.Dec. 674, 906 N.E.2d 1285 (2009) ( Dunn ) (without allegation of error promulgated by clerk's office and reasonable reliance sufficient to warrant equitable relief, trial court erred in granting relief of equitable redemption and in denying petition to expunge redemption). The Streets counter that the circuit court properly exercised its equitable power to extend the redemption period because they would have lost their home, with a fair market value of approximately $30,000, as a result of a misunderstanding as to the expiration date of the period of redemption, wherein the amount necessary to redeem was $1316.97. The Streets contend that they misunderstood the notices and thought that they had until the date of the hearing on the petition to issue a tax deed to redeem. They argue that they fell prey to the complexities of the taxing system. See Hawkeye , 378 Ill. App. 3d at 847, 317 Ill.Dec. 408, 881 N.E.2d 576.

¶ 14 We will employ an abuse of discretion standard to determine whether the circuit court erred in granting equitable relief to the Streets by extending their period of redemption.

Dunn , 389 Ill. App. 3d at 739, 329 Ill.Dec. 674, 906 N.E.2d 1285 ; see also Hawkeye , 378 Ill. App. 3d at 854, 317 Ill.Dec. 408, 881 N.E.2d 576 ("Given that the trial court was empowered to extend the redemption period beyond the statutory deadline due to general equitable principles, we will not overturn its decision absent an abuse of discretion."). "An abuse of discretion occurs only where no reasonable person could agree with the position taken by the trial court." In re Estate of Wright , 377 Ill. App. 3d 800, 803-04, 317 Ill.Dec. 194, 881 N.E.2d 362 (2007).

¶ 15 As noted, Illinois courts have modified the statutory redemption requirements in light of equitable considerations, when delay in payment was due to property owners' good-faith reliance on incorrect statements made by governmental offices. Hawkeye , 378 Ill. App. 3d at 848, 317 Ill.Dec. 408, 881 N.E.2d 576. "Illinois policy is mindful of equitable considerations when taxpayers may fall prey to the complexities of the taxing system, particularly with respect to their reliance upon the conduct, advice, and guidance of appropriate employees of the tax-collecting governmental offices." Id. at 847, 317 Ill.Dec. 408, 881 N.E.2d 576. Thus, the courts possess the equitable power to extend the period of redemption and should interpret the law flexibly in order to achieve equity and fairness in redemption cases. Id.

¶ 16 "Our United States Supreme Court has stated that the right to redeem is a substantial right." Id. "As a result, Illinois law traditionally favors redemption and seeks to give a liberal construction to the redemption laws, as long as the tax purchaser suffers no injury." Id. "The right of a holder of a tax certificate to receive a deed is subservient to the right of a person interested in the property to redeem." Monreal v. Sciortino , 238 Ill. App. 3d 475, 479, 179 Ill.Dec. 496, 606 N.E.2d 328 (1992). " 'The mere failure of the tax certificate holder to get a deed does not injure him, since the purchaser recovers the amount paid for the certificate from the court after the redemption.' " Id. (quoting In re Application of DuPage County Collector , 98 Ill. App. 3d 950, 952, 54 Ill.Dec. 301, 424 N.E.2d 1204 (1981) ); see also 35 ILCS 200/21-390 (West 2016) ; Goshinsky , 186 Ill. 2d at 530, 239 Ill.Dec. 600, 714 N.E.2d 519 ; Rattner , 2011 IL App (2d) 110061, ¶ 13, 355 Ill.Dec. 736, 960 N.E.2d 618.

¶ 17 Moreover, equity abhors forfeiture. Genesco, Inc. v. 33 North LaSalle Partners, L.P. , 383 Ill. App. 3d 115, 126, 321 Ill.Dec. 504, 889 N.E.2d 769 (2008) (Theis, J., specially concurring). Equity abhors forfeiture so much so that equity would allow a party time beyond the time established by statute to perform in order to save that party from an egregious forfeiture. See id. Equitable principles have been used to avoid the harsh results of taking a home from an unfortunate debtor, especially where the purchaser is seeking to take advantage of the provisions of the redemption statute to obtain a windfall. Skach v. Sykora , 6 Ill. 2d 215, 220, 127 N.E.2d 453 (1955). Thus, the public policy of Illinois recognizes that the right of redemption is substantial and that anyone possessing that right should not lose it because of mistake or misinterpretation. In re Application of Rosewell , 148 Ill. App. 3d 297, 303-04, 101 Ill.Dec. 466, 498 N.E.2d 790 (1986) ; In re Application of County Treasurer , 84 Ill. App. 3d 506, 510, 39 Ill.Dec. 890, 405 N.E.2d 869 (1980).

¶ 18 Here, pursuant to Illinois law and public policy, the circuit court properly favored redemption and sought to give a liberal construction to the redemption laws, considering that As-Is Properties suffered no injury. As-Is Properties' right as a holder of a tax certificate to receive a deed was subservient to the Streets' right to redeem. See Monreal , 238 Ill. App. 3d at 479, 179 Ill.Dec. 496, 606 N.E.2d 328.

The mere failure of As-Is Properties to get a deed does not injure it, since it recovers the amount paid for the certificate from the court after the redemption. See id. In contrast, the Streets faced the potential of an egregious forfeiture. If the circuit court had not extended the redemption period, the Streets would have lost their home with a fair market value of approximately $30,000 as a result of a misunderstanding as to the expiration date of the period of redemption. The amount necessary to redeem was the sum of $1316.97, which the Streets were willing and able to pay, and in fact did pay, after the court granted their petition. See generally Thomson Learning, Inc. v. Olympia Properties, LLC , 365 Ill. App. 3d 621, 633, 302 Ill.Dec. 877, 850 N.E.2d 314 (2006) (lessee may circumvent strict compliance with option to cancel or extend commercial lease if delay in strictly complying was slight, lessee would suffer undue hardship if strict compliance were not excused, and lessor would not suffer prejudice if strict compliance were excused). The circuit court's order allowing equitable redemption accords with the public policy which looks favorably upon redemption from tax foreclosure sales (see Monreal , 238 Ill. App. 3d at 478, 179 Ill.Dec. 496, 606 N.E.2d 328 ) and the equitable considerations when taxpayers fall prey to the complexities of the taxing system (see Hawkeye , 378 Ill. App. 3d at 847, 317 Ill.Dec. 408, 881 N.E.2d 576 ). We cannot conclude that no reasonable person could agree with the position taken by the circuit court.

¶ 19 As-Is Properties argues that the presence of the indemnity fund is an alternate ground for relief that should preclude granting equitable redemption power to the circuit court. We recognize that section 21-305 of the Code allows a property owner to petition for compensation when a tax sale of his or her property may result in injustice being done. 35 ILCS 200/21-305 (West 2016). "Indeed, the very purpose of the indemnity fund is to work equity." Hawkeye , 378 Ill. App. 3d at 854, 317 Ill.Dec. 408, 881 N.E.2d 576. Nonetheless, even though the Streets had a colorable indemnity claim, the presence of an alternate potential avenue of relief had no bearing upon whether they may pursue their chosen avenue of relief, namely, a judicial extension of the time allowed to redeem their property. See id. Instead, we find that the court had authority to order such an extension in the instant case. See id.

¶ 20 As a result of the circuit court's exercise of its equitable power to extend the redemption date, the only adverse effect to As-Is Properties was the loss of a windfall profit, and the Streets saved their family home. As-Is Properties suffered no injury, as it received the benefit of its original investment, collecting not only the amount paid, but the interest and penalties allowed by statute. Although the Streets did not rely on a misstatement or error by a government authority, each case must be decided based on the unique facts and equities presented. Under the unique circumstances presented in this record, we conclude that the circuit court properly exercised its equitable powers in extending the period of redemption prior to entry of an order for the issuance of a tax deed and in denying As-Is Properties' motion to expunge the redemption.

¶ 21 CONCLUSION

¶ 22 For the foregoing reasons, we affirm the judgment of the circuit court of Saline County.

¶ 23 Affirmed.

Justices Chapman and Cates concurred in the judgment and opinion.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert PEEL, Defendant-Appellant.
    NO. 4-16-0100
    Appellate Court of Illinois, Fourth District.
    Filed August 20, 2018
    James E. Chadd, Patricia Mysza, and Editha Rosario-Moore, of State Appellate Defender's Office, of Chicago, for appellant.
    Jason Chambers, State's Attorney, of Bloomington (Patrick Delfino, David J. Robinson, and Linda S. McClain, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE DeARMOND delivered the judgment of the court, with opinion.

¶ 1 In February 2014, defendant, Robert Peel, was arrested and charged with reckless discharge of a firearm. In September 2015, a jury found defendant guilty. At the January 2016 sentencing hearing, the trial court sentenced defendant to 30 months' probation and 4 days' imprisonment, with 4 days of presentence credit for time served.

¶ 2 On appeal, defendant argues (1) this court should overturn his conviction because the evidence shows the handgun was fired into the ground; (2) the trial court erred in not answering the jury's explicit question; (3) the court erred by hastening the jury deliberations; and (4) he was denied effective assistance of counsel due to counsel not requesting an explicit answer to the jury's question, not requesting a limiting instruction for evidence, not objecting during the State's closing arguments, and not presenting evidence promised in opening statements. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In February 2014, defendant, a nurse and veteran of the United States Marine Corps, fired a handgun from somewhere in the vicinity of the front door of his home located in a residential subdivision of Heyworth, Illinois. According to defendant, he decided to test-fire a Smith & Wesson 9-millimeter semiautomatic handgun in his front yard sometime after 8 p.m. on the evening of February 13, 2014, because his girlfriend was going to be using it while qualifying for her concealed carry permit. Defendant said test-firing was necessary because the gun had jammed previously and he was trying new ammunition at the suggestion of his father.

¶ 5 Defendant testified he exited his front door after consuming one or two beers, went down the front steps, and fired a number of rounds into the ground in his front yard, in a location he previously cleared of snow for his dogs. He said the snow had fallen earlier that day and was light and fluffy, and there was no ice in that particular location. He could not recall the exact number of rounds fired, but he estimated it to be "five to nine." He saw the holes where the rounds landed and did not see any ricochet. Defendant described his angle of fire as, "I would guess 30 degrees, less than 45 degrees right out in front of me." The empty shell casings were ejected back and to the right of defendant as he fired. He said he fired the rounds as quickly as possible because that was when the gun jammed previously, and he estimated it took no more than three to four seconds. According to defendant, since it was cold outside and he was wearing only jeans, tennis shoes, and a fleece pullover with no socks or underwear, he ran outside, fired the rounds, and ran back in. Once back inside, he consumed one more Bud Light before the police arrived.

¶ 6 Defendant said he was unaware of any police presence at his residence until sometime between 9 p.m. and 9:30 p.m. As he was getting ready to go to bed, he saw a vehicle parked in front of his house with its parking lights on and heard voices outside. He exited the front door to investigate. Defendant testified he did not hear anyone knocking at the door before he exited the residence because he was "all over the house," no one rang the doorbell, and his dogs gave no indication someone was at the door. Once outside, he said he initially did not realize the people in his front yard were police officers when a man approached him holding an AR-15 rifle and told him to put his hands up. He then recognized one of the other officers as a deputy sheriff when he also approached pointing a semiautomatic handgun at defendant. Defendant said he "froze" with his hands in the air, acknowledged he was in possession of a handgun when asked, and raised his shirt by the shoulders, as directed, in order to expose his waistband and the location of the pistol.

¶ 7 After he was disarmed, defendant was handcuffed and taken into custody. He denied struggling with the officers and said the reason he told the officers not to enter the house was because his girlfriend was sleeping naked in bed. At the police station, he was eventually handcuffed to a bench because he continued to stand up when told to be seated during the booking process. Defendant said it was because he was uncomfortable as a result of the snow in his shoes.

¶ 8 The State presented two occurrence witnesses who were neighbors of defendant. Darrell Karr lived diagonally across the street and south of defendant's residence. He received a phone call sometime between 8 p.m. and 8:30 p.m. from another neighbor, Tim Perschall. After getting off the phone, he went outside, stood on his porch, and looked in the direction of defendant's home, which he estimated at trial to be about 300 feet away. (Defendant testified he measured the distance at 270 feet.) While looking at defendant's residence, he could see the doorbell light and saw a series of four flashes followed by loud booms coming from the front door, straight across from the doorbell. He knew these were gunshots from his own experience with guns. He admitted he could not see who was firing the gun because the flashes were even with the doorframe. He also acknowledged it was possible the person was a few feet from the front door, although he said the front porch light was on and he did not see anyone.

¶ 9 James Ingels was a neighbor who lived directly across the street from defendant. He recalled hearing series of shots, which he described as "a few, five or so," around 8 p.m. to 8:30 p.m. on the night in question. A few minutes later, he heard another group of shots similar to the first, and then several minutes after that, a third group, louder than the first two. He counted the last group of shots as seven or eight. At some point, Ingels saw several police cars parked near defendant's home and observed them knocking on the front door. He said when the police first knocked, all the lights in the house were off, and then upstairs lights came on and went off again. According to Ingels, the police stood at the front door for several minutes knocking, and then he saw one approaching the front and another going around to the side of the house. He acknowledged seeing no gunfire and was unable to identify anyone as the shooter because he did not believe it was a good idea to go outside during the shooting.

¶ 10 Deputy Brian Hanner, Deputy Jason Simmons, and Deputy Jonathan Albee, all of the McLean County Sheriff's Department, were called to testify regarding the incidents surrounding the investigation of shots being fired and the arrest of defendant. Other officers of both the Heyworth Police Department and McLean County Sheriff's Department were present when Deputy Hanner first arrived, and after conferring, Deputy Hanner and Deputy Albee took up a position to the south of the residence, where they could see both the rear and side of defendant's home. They waited there approximately 10 minutes before seeing Deputy Simmons moving to the front of the house and overhearing commands to someone to "put your hands up." Deputies Hanner and Albee then moved to the front in time to see Deputy Simmons and Sergeant Tapke of the Heyworth Police Department confronting defendant and removing a firearm from him.

¶ 11 Deputy Hanner, a five-year veteran with the sheriff's department, testified to the chain of custody of the handgun and its eight-shot magazine once taken from defendant. He also indicated he was twice in close proximity to defendant that evening-both at the scene as they took him into custody and later after transporting him to the police station for booking. On both occasions, he observed the odor of an alcoholic beverage on defendant's breath and observed his eyes to be bloodshot and glassy. Deputy Hanner also identified seven shell casings, four brass and three nickel, given to him by Deputy Albee and processed as evidence.

¶ 12 Deputy Simmons, a 17-year veteran of the sheriff's department and a firearms instructor, observed Sergeant Tapke approach defendant, and Deputy Simmons told defendant to put his hands up. Since defendant was illuminated by the searchlight from Sergeant Tapke's squad car, the handgun tucked into the right side of his waistband was clearly visible when he was told to raise his shirt. Deputy Simmons took possession of the handgun once Sergeant Tapke removed it from defendant's waistband. He also removed the magazine. Because the call had been for shots fired recently, he smelled the handgun and noted an odor he recognized as being a sign of recent discharge. Once he attempted to remove the handcuffed defendant from the immediate area of the front yard, he noted defendant "physically obstructed my efforts to move him toward the squad car." He described defendant's behavior as "combative" and said he had to stop on the way, push defendant up against another squad car, and tell him to stop struggling and move to his squad car. He also smelled the odor of an alcoholic beverage on defendant's breath. Once in booking, he again had to admonish defendant, who refused to remain seated as directed and eventually had to be handcuffed to the bench to complete processing.

¶ 13 Deputy Albee, who had been with the sheriff's department for six years, testified about responding to the call and observing defendant being taken into custody. He entered the residence after the scene had been cleared, taking photographs both inside and outside on and near the porch to document the location of various spent shell casings. He took photographs of a casing found on the front step, three additional casings on the front porch, and one found inside the house by the front door. Deputy Albee also took pictures of the residence in relation to those of the witnesses in order to show the view of defendant's residence available to the neighbors. He also paced off the distance between defendant's home and the residence across the street, finding it to be approximately 138 feet. In all, he recovered seven shell casings, six he believed to be on the front porch and one inside the door, which were turned over to Deputy Hanner for processing as evidence.

¶ 14 The State also called an Illinois State Police forensic scientist from the Morton Forensic Science Laboratory to identify each of the shell casings as having been fired from defendant's gun. He also confirmed when casings are ejected from defendant's handgun, they are ejected up and to the right, as the gun is designed to do.

¶ 15 As a result of the incident, the State charged defendant with reckless discharge of a firearm ( 720 ILCS 5/24-1.5(a) (West 2012) ), alleging defendant discharged a firearm in a reckless manner, which endangered the bodily safety of an individual. In September 2015, the trial court conducted a three-day jury trial. During deliberations, the jury asked two questions. The first was, "[d]oes endangering the bodily safety of an individual include the defendant as an individual himself?" The court replied with an instruction stating, "[y]ou have received all of the jury instructions in this matter. Please review those instructions in reaching your decision." The second question was a request for the transcript of defendant's expert, who discussed the safety of discharging a firearm into the ground and how gun casings eject back and to the right. The court responded, "I have checked with the court reporter, and she indicated a transcript of [defendant's expert] will take at least an hour and a half to prepare. Are you still interested in receiving it?" The jury came back 20 to 30 minutes later with its unanimous verdict, finding defendant guilty of reckless discharge of a firearm. In January 2016, the court sentenced defendant to 30 months of probation and 4 days of imprisonment, with 4 days of presentence credit for time served.

¶ 16 This appeal followed.

¶ 17 II. ANALYSIS

¶ 18 A. Sufficiency of the Evidence

¶ 19 Defendant argues his conviction should be overturned where the evidence showed he fired a handgun into the ground, there was no evidence of ricochet, and no one was near him when he discharged his weapon. We disagree.

¶ 20 "[P]roof of a criminal charge beyond a reasonable doubt is constitutionally required." In re Winship , 397 U.S. 358, 362, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). When reviewing a challenge to the sufficiency of the evidence, "the relevant question 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.) Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). "A person commits the offense of reckless discharge of a firearm when he (1) recklessly discharges a firearm, and (2) endangers the bodily safety of an individual." People v. Collins , 214 Ill. 2d 206, 212, 291 Ill.Dec. 686, 824 N.E.2d 262, 265 (2005).

"A person is reckless or acts recklessly, when he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, described by the statute defining the offense; and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." (Internal quotation marks omitted.) People v. Watkins , 361 Ill. App. 3d 498, 500, 297 Ill.Dec. 492, 837 N.E.2d 943, 945 (2005).

"[I]n order to satisfy the element of 'endangerment' contained in the statute, the State must establish that a defendant's reckless conduct created a dangerous situation-such that an individual was in peril of probable harm or loss." Collins , 214 Ill. 2d at 215, 291 Ill.Dec. 686, 824 N.E.2d 262.

¶ 21 Defendant argues he shot into the ground, a practice he believed to be safe because it lessened the possibility of any ricochet. Moreover, he said he saw no evidence of ricochet when he fired. The testimony of Karr, however, was that he saw a series of four flashes followed by loud booms coming from the front door, straight across from the doorbell at a height just below the deadbolt lock on the front door. Defendant also points to the location of the spent shell casings on the front porch as corroborative of his version. The State not only introduced evidence of one casing found inside the front doorway, but also, through cross-examination of defendant's expert, elicited testimony a person could have been standing in locations other than indicated by defendant and still would have caused the shell casings to land where they were found. It was also noted how the locations where casings were found were discovered only after a number of people had entered and exited the house. Defendant admitted on cross-examination he initially told police he had not fired a gun that night. Defendant said he was test-firing the handgun because it had jammed previously, so he had loaded it with new Federal brand ammunition, yet the police recovered casings of two different types, brass and nickel.

¶ 22 Although defendant said he never heard the police at his door, his neighbor said when the police first knocked, upstairs lights went on and then off again, and according to the officers, no one answered the door for approximately 10 minutes. These are all matters of conflicting evidence from which the trier of fact could decide which witnesses were more credible. Defendant confuses conflicting circumstantial evidence with the State's burden of proof, contending since the State's evidence conflicted with defendant's version, the State has failed to prove their case. These credibility determinations and decisions regarding the weighing of circumstantial evidence are uniquely those of the fact finders. It is up to the jury to weigh the evidence, determine the credibility of the witnesses, and decide which story to believe. See People v. Williams , 303 Ill. App. 3d 264, 267, 236 Ill.Dec. 602, 707 N.E.2d 729, 731 (1999).

¶ 23 As our supreme court has stated in Collins , part of the danger inherently caused by a reckless discharge of a firearm is the ricochet effect when bullets hit the ground. Collins , 214 Ill. 2d at 218, 291 Ill.Dec. 686, 824 N.E.2d 262. Further, the supreme court noted a defendant's conduct need not actually endanger anyone but instead could be conduct that might result in harm, citing the legislative history for section 24-1.5 of the Criminal Code of 2012 (Criminal Code) ( 720 ILCS 5/24-1.5 (West 2012) ). They pointed out how prior to enactment of the reckless discharge of a firearm statute, there were only two choices for someone firing a firearm recklessly-a Class A misdemeanor for reckless conduct or a Class 1 felony for aggravated discharge of a firearm. Representative Homer stated the following when the bill was discussed on the floor:

" 'But what happens if somebody just recklessly discharges a firearm? Doesn't necessarily aim it at someone or aim it into a [sic ] occupied building, but goes around town or out in the country or wherever it is shooting off a gun recklessly, with reckless abandon? Under current law, that would be a Class A misdemeanor [ (reckless conduct) ]. And so the Gentleman says we should have some middle ground here and call it reckless discharge of a firearm. That's what this Bill does.' " (Emphasis omitted.) Collins , 214 Ill. 2d at 216, 291 Ill.Dec. 686, 824 N.E.2d 262 (quoting 88th Ill. Gen. Assem., House Proceedings, April 22, 1993, at 210 (statements of Representative Homer) ).

¶ 24 Defendant appears to erroneously argue the State must show there was an identifiable "someone" in his vicinity when he fired his handgun in order to establish reckless endangerment under the statute. This is a misreading of People v. Moreno , 2015 IL App (3d) 130119, 390 Ill.Dec. 728, 29 N.E.3d 660, and contrary to the supreme court's express finding in Collins . In Collins , the court noted how the specific identity of the victim is not an essential element and the danger or peril need only be potential or a possibility. Collins , 214 Ill. 2d at 215-19, 291 Ill.Dec. 686, 824 N.E.2d 262. The Moreno court merely noted how, under the facts of the case, the only potential victims were behind the defendant when he fired, and the danger due to a potential ricochet was "virtually zero." Moreno , 2015 IL App (3d) 130119, ¶ 44, 390 Ill.Dec. 728, 29 N.E.3d 660. The court's reasoning in Moreno cannot be used to say firing into the ground is inherently safe either, as the possibility of a round ricocheting off the ground when fired at an angle is always possible. In this case, it was midwinter, which, as we can note just as well as the jury, means the ground is possibly frozen or nearly so. The facts before this court do not fall under the narrow exception for which Moreno applies. Defendant faced toward the house of his neighbor, Ingels, by his own description as he fired and would have been standing closer than the 138 feet measured by the deputy. This significantly undermines the supposed safety of defendant's own version of events.

¶ 25 Here, even if defendant's version of events was accepted, he fired "five to nine" rounds, not straight or nearly straight down into wintertime, recently snow-covered ground, but at an angle of he "would guess 30 degrees, less than 45 degrees right out in front of" him, in the immediate vicinity of a number of neighbors' houses. More importantly, if the jury did not believe defendant's version, he fired a number of rounds off his front porch, almost straight out from the doorway, and these were not the only rounds fired that night. According to Ingels, the rounds observed by Karr were the last of a series of three. The first two, not as loud as the third, were fired somewhere and consisted of "five or so" each time. It is reasonable for the jury to conclude defendant was firing from at least two different locations since the first two series of shots were not seen by neighbors and were not as loud as those off the front porch. Contrary to defendant's argument, this sounds exactly like the sort of conduct for which this statute was intended:

" 'But what happens if somebody just recklessly discharges a firearm? Doesn't necessarily aim it at someone or aim it into a [sic ] occupied building, but goes around town or out in the country or wherever it is shooting off a gun recklessly, with reckless abandon?' " (Emphasis omitted.) Collins , 214 Ill. 2d at 216, 291 Ill.Dec. 686, 824 N.E.2d 262 (quoting 88th Ill. Gen. Assem., House Proceedings, April 22, 1993, at 210 (statements of Representative Homer) ).

¶ 26 Looking at the evidence in the light most favorable to the State, we find there was enough evidence in the record upon which a jury could find defendant guilty of reckless discharge of a firearm.

¶ 27 B. Jury Instructions

¶ 28 Defendant argues the trial court erred by not answering an explicit question posed by the jury. We disagree.

¶ 29 "[A] [trial] court bears the burden of seeing that the jury is instructed on the elements of the crime charged, on the presumption of innocence and on the question of burden of proof." People v. Parks , 65 Ill. 2d 132, 137, 2 Ill.Dec. 320, 357 N.E.2d 487, 489 (1976). "[O]ur legislature intended the term 'an individual' to mean someone other than the 'person' who is charged with the offense of reckless discharge of a firearm." People v. Grant , 2017 IL App (1st) 142956, ¶ 24, 411 Ill.Dec. 501, 73 N.E.3d 585.

¶ 30 Here, the jury, during deliberations, asked the question, "[d]oes endangering the bodily safety of an individual include the defendant as an individual himself?" After consulting with the parties, the trial court accepted the response, which the parties had jointly prepared, "[y]ou have received all of the jury instructions in this matter. Please review those instructions in reaching your decision."

¶ 31 "[T]he general rule is that the trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion." People v. Childs , 159 Ill. 2d 217, 228-29, 201 Ill.Dec. 102, 636 N.E.2d 534, 539 (1994). This duty remains even if the jury is originally properly instructed. Childs , 159 Ill. 2d at 229, 201 Ill.Dec. 102, 636 N.E.2d 534. "When a jury makes explicit its difficulties, the court should resolve them with specificity and accuracy." Childs , 159 Ill. 2d at 229, 201 Ill.Dec. 102, 636 N.E.2d 534. The failure to answer or giving a response that does not provide an answer to the question posed by the jury "has been held to be prejudicial error." Childs , 159 Ill. 2d at 229, 201 Ill.Dec. 102, 636 N.E.2d 534.

¶ 32 The State argues defendant affirmatively acquiesced to the error by agreeing to the proposed answer to the jury. We agree defendant affirmatively acquiesced and cannot raise the issue on appeal. In People v. Heller , 2017 IL App (4th) 140658, ¶ 67, 410 Ill.Dec. 834, 71 N.E.3d 1113, this court found the defendant could not claim error due to an improper jury instruction on other-crimes evidence where the parties agreed to the incorrect instruction. Likewise, defendant cannot claim error when defense counsel and the State reached an agreement about the instruction to give to the jury. Defendant contends even if the argument was waived, plain-error analysis should apply. However, "[p]lain-error analysis applies to cases involving procedural default [citation], not affirmative acquiescence." People v. Bowens , 407 Ill. App. 3d 1094, 1101, 348 Ill.Dec. 339, 943 N.E.2d 1249, 1258 (2011).

¶ 33 C. Jury Deliberations

¶ 34 Defendant argues the trial court hastened the jury's deliberations by asking the jury if they still wanted the transcript after telling them it would take the clerk nearly an hour and a half to transcribe her notes. We disagree.

¶ 35 "The integrity of the jury's verdict must be protected from coercion, duress or influence." People v. Patten , 105 Ill. App. 3d 892, 894, 61 Ill.Dec. 682, 435 N.E.2d 171, 172 (1982). "[T]he test is whether under the circumstances the language [the trial court] used actually coerced or interfered with the deliberations of the jurors to the prejudice of the defendant." People v. Gregory , 184 Ill. App. 3d 676, 681, 132 Ill.Dec. 932, 540 N.E.2d 854, 857 (1989). Because coercion is a highly subjective concept that does not lend itself to precise testing, "the reviewing court's decision often turns on the difficult task of ascertaining whether the challenged comments imposed such pressure on the minority jurors that it caused them to defer to the conclusions of the majority for the purpose of expediting a verdict." People v. Fields , 285 Ill. App. 3d 1020, 1029, 221 Ill.Dec. 273, 675 N.E.2d 180, 186 (1996). "In determining the propriety of the trial court's comments, the test is whether under the totality of the circumstances the language used actually interfered with the jury's deliberations and coerced a guilty verdict." People v. Defyn , 222 Ill. App. 3d 504, 515-16, 165 Ill.Dec. 41, 584 N.E.2d 220, 228 (1991).

¶ 36 Here, as mentioned previously, defendant cannot complain of error in an instruction where he affirmatively acquiesced. Defendant and the State agreed to allow the trial court to advise the jury the transcript would take an hour and a half to transcribe and to ask if the jury still wanted it. Thus, the claim can only be viewed under a claim of ineffective assistance of counsel as the issue of the propriety of the instruction was forfeited. See Bowens , 407 Ill. App. 3d at 1101, 348 Ill.Dec. 339, 943 N.E.2d 1249.

¶ 37 However, even if we were to review the claim, the record itself belies any evidence of coercion. The jury left the courtroom to begin deliberating on September 15 at 2:22 p.m. At approximately 5:15 p.m., they sent out the note relating to "individual" discussed above. At approximately 5:50 p.m., the court gave the jury their instructions for the evening and sent them home. The jury began deliberation again on the morning of September 16 at 9 a.m., and shortly before 11:40 a.m. informed the court they were unable to reach a verdict. The court gave them the Prim instruction (see People v. Prim , 53 Ill. 2d 62, 75-76, 289 N.E.2d 601, 609 (1972) ) and sent them to lunch. Afterwards, they continued deliberating and by all appearances, the question regarding the transcript came sometime before 3:20 p.m. because the court and counsel were discussing the proposed answer at about that time. The jury then returned their verdict between 3:45 p.m. and 3:50 p.m. During the discussion, the court made specific reference to its concern over whether part of its suggested response might be perceived as an effort to hasten a verdict and ultimately accepted defense counsel's suggestion to merely ask the jury, once they were informed of the time it would take to produce, whether they still wanted a copy. This was not the first time the jury heard how long a transcript might take-they were informed at the outset of the trial of the time it takes to produce a transcript based on the length of the testimony sought.

¶ 38 D. Ineffective Assistance of Counsel

¶ 39 A defendant's claim of ineffective assistance of counsel is analyzed under the two-pronged test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). People v. Henderson , 2013 IL 114040, ¶ 11, 370 Ill.Dec. 804, 989 N.E.2d 192. To prevail on such a claim, "a defendant must show both that counsel's performance was deficient and that the deficient performance prejudiced the defendant." People v. Petrenko , 237 Ill. 2d 490, 496, 342 Ill.Dec. 15, 931 N.E.2d 1198, 1203 (2010). To establish deficient performance, the defendant must show his attorney's performance fell below an objective standard of reasonableness. People v. Evans , 209 Ill. 2d 194, 219-20, 283 Ill.Dec. 651, 808 N.E.2d 939, 953 (2004) (citing Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ). " 'Effective assistance of counsel refers to competent, not perfect representation.' " Evans , 209 Ill. 2d at 220, 283 Ill.Dec. 651, 808 N.E.2d 939 (quoting People v. Stewart , 104 Ill. 2d 463, 491-92, 85 Ill.Dec. 422, 473 N.E.2d 1227, 1240 (1984) ). Mistakes in trial strategy or tactics do not necessarily render counsel's representation defective. See People v. Benford , 349 Ill. App. 3d 721, 729-30, 285 Ill.Dec. 894, 812 N.E.2d 714, 721-22 (2004) (finding defense counsel's decision not to file a motion to suppress was a trial tactic and did not constitute ineffective assistance of counsel).

¶ 40 To establish the second prong of Strickland , "[a] defendant establishes prejudice by showing that, but for counsel's unprofessional errors, there is a reasonable probability that the result of the proceeding would have been different." People v. Houston , 229 Ill. 2d 1, 4, 321 Ill.Dec. 702, 890 N.E.2d 424, 426 (2008). A "reasonable probability" has been defined as a probability that would be sufficient to undermine confidence in the outcome of the trial. Houston , 229 Ill. 2d at 4, 321 Ill.Dec. 702, 890 N.E.2d 424. "A defendant must satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a finding of ineffectiveness." People v. Simpson , 2015 IL 116512, ¶ 35, 388 Ill.Dec. 909, 25 N.E.3d 601.

¶ 41 1. Jury Instruction on "an Individual"

¶ 42 Defendant argues he was denied effective assistance of counsel because defense counsel did not request the trial court to inform the jury defendant himself could not be an individual under the reckless discharge of a firearm statute. We disagree.

¶ 43 Section 24-1.5(a) of the Criminal Code provides: "A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5(a) (West 2012). Prior to the First District's holding in Grant , 2017 IL App (1st) 142956, 411 Ill.Dec. 501, 73 N.E.3d 585, no Illinois decision had interpreted the meaning of "an individual" in the reckless discharge statute. The dispute in Grant centered on whether that phrase could be interpreted to include the defendant. Grant , 2017 IL App (1st) 142956, ¶ 8, 411 Ill.Dec. 501, 73 N.E.3d 585. Acknowledging the court in Moreno , a case upon which defendant also relies, did not address whether "an individual" could include the person charged, the First District concluded the substantial risk had to involve the bodily safety of others. Grant , 2017 IL App (1st) 142956, ¶ 17, 411 Ill.Dec. 501, 73 N.E.3d 585. "When deciding whether counsel was competent, we must look to the state of the law at the time of trial." People v. Carney , 317 Ill. App. 3d 806, 814, 251 Ill.Dec. 354, 740 N.E.2d 435, 441 (2000) (while Carney cites no authority for this holding, we note it is merely a matter of common sense), rev'd on other grounds , 196 Ill. 2d 518, 256 Ill.Dec. 895, 752 N.E.2d 1137 (2001). Defendant cites People v. Cathey , 2012 IL 111746, 358 Ill.Dec. 630, 965 N.E.2d 1109, in his reply brief in response to Carney for the proposition defense counsel could be objectively unreasonable where he failed to raise an issue that had been addressed during the time of defendant's appeal. However, Cathey is inapposite. In Cathey , the defense counsel at trial raised the issue of the trial court waiting to rule on a motion in limine on defendant's conviction, stating it would create prejudice because the ruling affected the defendant's willingness to testify and the effectiveness of his testimony. Cathey , 2012 IL 111746, ¶ 27, 358 Ill.Dec. 630, 965 N.E.2d 1109. However, on appeal, the appellate defense counsel did not raise the issue again, though it was one upon which appellate courts had ruled during the pendency of the appeal. Cathey , 2012 IL 111746, ¶ 27, 358 Ill.Dec. 630, 965 N.E.2d 1109. As such, appellate counsel's representation was found deficient because of the current state of the law during the appeal.

Cathey , 2012 IL 111746, ¶ 29, 358 Ill.Dec. 630, 965 N.E.2d 1109. That issue is not present here because we are focused exclusively on the effectiveness of trial counsel.

¶ 44 Contrary to defendant's claim, there was no way for the trial court, or counsel for that matter, to glean from reading then-published cases there would ultimately be a definitive answer to the jury's question. This too points out the unenviable but frequently encountered circumstances presented to a trial judge during jury deliberations. Unlike counsel, who has had months to read, research, and write his or her brief, the trial judge was confronted with a question shortly after 5 p.m., the end of the court day, when most staff not directly involved in the trial have probably gone home. With the deliberating jury waiting, in the few minutes it took to assemble counsel and defendant in open court, the court engaged in what research it could in the time allotted, found no dispositive statements of law, and so informed counsel, only after hearing what the attorneys' jointly suggested response would be.

¶ 45 As we noted above, counsel, having not only acquiesced but participated with the State in jointly deciding how to respond, cannot now claim error. See People v. Schmitt , 131 Ill. 2d 128, 137, 137 Ill.Dec. 12, 545 N.E.2d 665, 668 (1989) ("where, as here, a party acquiesces in proceeding in a given manner, he is not in a position to claim he was prejudiced thereby"). In People v. Villarreal , 198 Ill. 2d 209, 227, 260 Ill.Dec. 619, 761 N.E.2d 1175, 1184 (2001), our supreme court noted how active participation in the direction of the proceedings goes beyond mere waiver, and to allow counsel to ask the trial court to proceed in a certain manner and then seek to claim error on review "would offend all notions of fair play." Equally so, when the defendant invites the error, the plain-error analysis which may otherwise be available under an ineffective assistance of counsel claim is also forfeited. See People v. Patrick , 233 Ill. 2d 62, 77, 330 Ill.Dec. 149, 908 N.E.2d 1, 10 (2009) (finding plain-error review is forfeited when the defendant invites the error).

¶ 46 It is perhaps instructive, however, to note defendant's reliance on Grant , 2017 IL App (1st) 142956, 411 Ill.Dec. 501, 73 N.E.3d 585. Grant was filed on February 17, 2017. Defendant's trial was held in September 2015. Defendant argues since the court's reasoning in Grant included analysis from cases which were existent at the time of defendant's trial, the trial court and his counsel were wrong for not seeing into the future and realizing eventually there would be a case holding the term "individual" within the language of section 24-1.5(a) of the Criminal Code would be defined to exclude the shooter. We expect trial counsel to be effective and the trial court knowledgeable of the law. In this case, they were. Neither are expected or required to be clairvoyant.

¶ 47 2. Opening Statements

¶ 48 Defendant argues he was denied effective assistance of counsel because defense counsel promised evidence in opening statements, which was never admitted. We disagree.

¶ 49 Here, the State informed defense counsel, prior to defendant's case in chief, it was going to object to any testimony from defendant regarding his military training with firearms. The prosecutor also informed the court if defendant was permitted to testify regarding this subject over the State's objection, it intended to recall one of its own witnesses in rebuttal to testify about his military training and how it differed from defendant's testimony. Defense counsel then made the tactical choice to limit his inquiry to defendant's classification as an "Expert Marksman"

in both pistols and rifles until the State and the court questioned the relevance of his designation if there was going to be no testimony regarding the training or experience involved. In order to preclude the State from calling their own rebuttal expert, counsel then elected to limit the testimony simply to defendant's rank as a sergeant. This was clearly a matter of trial strategy because counsel did not want to face the possibility of a rebuttal witness with military firearms training being called after his client testified. As such, we are obligated to indulge in the strong presumption counsel's performance was competent and that the challenged action was the product of sound trial strategy. People v. Davis , 2014 IL App (4th) 121040, ¶ 19, 387 Ill.Dec. 514, 22 N.E.3d 1167.

¶ 50 3. Limiting Instruction

¶ 51 Defendant argues counsel was ineffective for failing to request a limiting instruction on other-crimes evidence. We disagree.

¶ 52 Defense counsel moved in limine to bar the admission of evidence of defendant resisting arrest in light of that charge being dropped, as it would be improper character evidence. The trial court denied the motion, stating it could come in for the limited purpose of consciousness of guilt and/or defendant's state of mind. However, it was up to defense counsel to request the limiting instruction, and defense counsel did not, which is the source of this claim. The decision to not request a limiting instruction may have been trial strategy in order to avoid drawing undue attention to the other-crimes evidence. See People v. Johnson , 368 Ill. App. 3d 1146, 1161, 307 Ill.Dec. 290, 859 N.E.2d 290, 304 (2006) (finding the decision to not request a limiting instruction for other-crimes evidence may have been trial strategy to not draw attention to the evidence). This is even more likely in light of the fact there was some difference in the testimony of Deputy Simmons and that of defendant with regard to his actions once defendant was handcuffed. Defendant, however, gave a justification which explained, to some degree, his behavior in a light somewhat different from actually resisting the officer, and perhaps defendant's counsel did not wish to highlight the testimony any more by pursuing the limiting instruction he was offered. As such, defendant cannot show deficient performance in the tactical decision to decline a limiting instruction on such a peripheral matter.

¶ 53 4. Closing Arguments

¶ 54 Defendant argues he was denied effective assistance of counsel because defense counsel did not object to the prosecutor stating in closing arguments, "[t]he evidence shows that he was not firing [the gun] into the ground. If he was firing it into the ground, the muzzle blast would be a lot shorter, lower than where the doorbell was, a lot lower." We disagree.

¶ 55 "The prosecution is afforded wide latitude in making closing arguments so long as the comments made are based on the evidence or reasonable inferences drawn therefrom." People v. Gonzalez , 388 Ill. App. 3d 566, 587, 326 Ill.Dec. 918, 900 N.E.2d 1165, 1183 (2008).

¶ 56 Here, the prosecutor's statements were drawn from reasonable inferences based on the testimony of the neighbors when compared to that of defendant. Defendant contended he moved down the steps of the front porch and shot from ground level, extending the gun in front of him about "mid-thigh," and firing into a patch of cleared ground just off the sidewalk. Karr said he saw the muzzle flashes coming straight out from the doorframe, at a level just slightly lower than the doorbell light. Additionally, the jury was instructed both opening statements and closing arguments were not evidence and told to disregard any statement or argument made by counsel that did not comport with their recollection of the evidence.

¶ 57 5. Jury Instruction on Transcripts

¶ 58 Defendant argues trial counsel rendered ineffective assistance by not objecting to the trial court's instruction regarding how long it would take for the clerk to transcribe her notes and whether the jury still wanted the transcript after being so informed. We disagree.

¶ 59 Trial counsel not only failed to object to the court's instruction but contributed to it, and his contribution was accepted by the court and helped shape the actual instruction given. Since the jury was requesting testimony from his own expert and had already been deliberating into their second day, this could easily have been a matter of trial strategy as well. Counsel undoubtedly thought there was testimony beneficial to his client, which would have been highlighted by a transcript. However, had the transcript been provided, the jury would have been reminded, in addition to those things defendant might consider beneficial to his defense, that the expert also said he would never allow someone who smelled of alcohol to be handling firearms in one of his classes and that he would not recommend firing a firearm in a residential area. Regardless, there is no way to determine from this record what detrimental impact the instruction had on defendant's case. The jury obviously concluded at some point the testimony was not necessary to their deliberations. Counsel's strategy in suggesting a response does not have to necessarily be effective in obtaining a particular result, but counsel must merely provide competent representation. See Stewart , 104 Ill. 2d at 491-92, 85 Ill.Dec. 422, 473 N.E.2d 1227 (1984) ("Effective assistance of counsel refers to competent, not perfect representation.").

¶ 60 There is nothing in this record from which a reviewing court could conclude the outcome of this case would have been any different had an objection been made to the State's argument. This was clearly a matter of credibility, and the triers of fact are allowed substantial deference on review. See People v. Rendak , 2011 IL App (1st) 082093, ¶ 30, 354 Ill.Dec. 227, 957 N.E.2d 543 ("[I]t is the trier of fact's duty to resolve questions involving the weight of the evidence or the credibility of witnesses. The degree of this deference is substantial * * *.").

¶ 61 III. CONCLUSION

¶ 62 For the reasons stated, we affirm the trial court's judgment. As part of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal. See 55 ILCS 5/4-2002(a) (West 2016).

¶ 63 Affirmed.

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


text:
    CENTRAL ILLINOIS COMPOUNDING, INC., d/b/a Preckshot Professional Pharmacy, Plaintiff and Counterdefendant-Appellant, v. PHARMACISTS MUTUAL INSURANCE COMPANY, Defendant and Counterplaintiff-Appellee.
    Appeal No. 3-17-0809
    Appellate Court of Illinois, Third District.
    Opinion filed September 6, 2018
    Thomas E. Leiter, of The Leiter Group Attorneys & Counselors, of Peoria, for appellant.
    Brian H. Sanchez, of Sanchez Daniels & Hoffman, LLP, of Chicago, for appellee.
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 Central Illinois Compounding, Inc., d/b/a Preckshot Professional Pharmacy (Preckshot) filed suit against Pharmacists Mutual Insurance Company (Pharmacists Mutual), alleging that Pharmacists Mutual breached the insurance policy contract between the parties by denying Preckshot's claim. Pharmacists Mutual filed a counterclaim seeking a declaratory judgment that Preckshot's claim was barred by exclusions in the policy. Pharmacists Mutual, in its capacity as counterplaintiff, filed a motion for summary judgment, which the circuit court granted. On appeal, Preckshot argues that the circuit court's ruling was erroneous because Pharmacists Mutual failed to demonstrate that Preckshot's claim was excluded by the policy. We affirm.

¶ 2 FACTS

¶ 3 On December 10, 2015, Preckshot was operating Preckshot Professional Pharmacy in a leased space located at 5832 North Knoxville Avenue in Peoria. At that time, a contract of insurance was in force between Preckshot and its insurer, Pharmacists Mutual. According to the undisputed facts of the case, AT & T and its subcontractor were performing directional boring behind Preckshot's premises. That boring was not related to Preckshot in any way, was not performed at the behest of Preckshot, and was not done on Preckshot's premises. The boring damaged a water service line located approximately 18 inches from the Preckshot premises, causing a discharge of water that inundated the Preckshot premises above the ground. All direct physical loss and damage to the premises occurred above the surface of the ground.

¶ 4 Preckshot subsequently contacted Pharmacists Mutual to file a claim pursuant to its insurance policy. Pharmacists Mutual, in turn, dispatched Steven Little of Dona Engineering to Preckshot to determine the precise cause of the damages. Little concluded that the water from the struck line flowed through under a concrete slab and came up through the ground to infiltrate the Preckshot interior. In a letter dated January 22, 2016, Pharmacists Mutual denied coverage for Preckshot's claim, asserting that the claim was barred by exclusions in the policy. Specifically, Pharmacists Mutual stated that the policy excluded perils caused by "water below the surface of the ground." Pharmacists Mutual also pointed out that the claim was subject to an exclusion for "Defects, Errors, or Omissions."

¶ 5 Preckshot filed suit against Pharmacists Mutual, claiming breach of the insurance policy. Count II of the suit alleged that Pharmacist Mutual's denial of the claim was vexatious and unreasonable and therefore made in bad faith under section 155(1) of the Illinois Insurance Code. See 215 ILCS 5/155(1) (West 2016). Pharmacists Mutual filed a counterclaim for declaratory judgment. Citing the same exclusions it had referenced in its letter to Preckshot (see supra ¶ 4), Pharmacists Mutual prayed for a declaration that it was "not obligated to provide coverage or pay benefits under the Policy." The counterclaim did not reference the claim of bad faith raised in count II of Preckshot's original suit.

¶ 6 Preckshot subsequently filed a motion for summary judgment with respect to Pharmacists Mutual's counterclaim. Pharmacists Mutual then filed a combined motion for summary judgment, seeking summary judgment in its capacity as defendant with regard to the two counts of Preckshot's original suit, as well as seeking summary judgment in its capacity as counterplaintiff with regard to its counterclaim for declaratory relief.

¶ 7 Following briefing and oral arguments, the circuit court denied Preckshot's motion for summary judgment, granted Pharmacists Mutual's motion for summary judgment, and declared that Pharmacists Mutual "is not obligated to provide coverage or pay benefits under the Policy." Specifically, the circuit court found that coverage was excluded under both the "water below the surface of the ground" exclusion and the "Defects, Errors, or Omissions" exclusion.

¶ 8 ANALYSIS

¶ 9 On appeal, Preckshot argues that the plain language of the insurance policy shows that the two exclusions cited by Pharmacists Mutual were inapplicable to its claim and that the circuit court therefore erred in granting summary judgment in favor of Pharmacists Mutual. Preckshot also argues that since Pharmacists Mutual's denial of the claim was done in bad faith, the circuit court also erred in granting summary judgment as to count II of Preckshot's suit. We find that the damage to Preckshot's property was caused by "water below the surface of the ground," as contemplated by the exclusion in question, and that Pharmacists Mutual was therefore not obligated to provide coverage or pay benefits under the policy.

¶ 10 Summary judgment is proper only where the materials on the record-including pleadings, depositions, admissions, or affidavits-when construed in the light most favorable to the nonmoving party demonstrate that there is no issue as to any genuine material fact and that the moving party is entitled to judgment as a matter of law. Shannon v. Boise Cascade Corp. , 208 Ill. 2d 517, 523-24, 281 Ill.Dec. 845, 805 N.E.2d 213 (2004). In the present case, the parties do not dispute that the insurance policy was in full force at the time in question, nor is there a dispute concerning the underlying facts of Preckshot's claim. The only issue is whether the language of the insurance policy entitles Pharmacists Mutual to judgment as a matter of law. We review that issue de novo . Founders Insurance Co. v. Munoz , 237 Ill. 2d 424, 432, 341 Ill.Dec. 485, 930 N.E.2d 999 (2010).

¶ 11 An insurance policy is a contract, and the rules of contract interpretation apply to the interpretation of an insurance policy. Id. at 433, 341 Ill.Dec. 485, 930 N.E.2d 999. The primary function of the court is to ascertain and give effect to the intent of the parties, as expressed in the plain language of the policy. Id. Where the policy contains an ambiguity, that ambiguity must be construed liberally in favor of coverage. Id. An ambiguity will be found where a portion of the policy is subject to multiple reasonable interpretations; an ambiguity does not exist simply because the parties disagree as to its meaning. Id. In determining whether an ambiguity exists, it is improper to read additional language or terms into the agreement. Barth v. State Farm Fire & Casualty Co. , 228 Ill. 2d 163, 174, 319 Ill.Dec. 852, 886 N.E.2d 976 (2008). Finally, "an insurance policy must be considered as a whole; all of the provisions, rather than an isolated part, should be examined to determine whether an ambiguity exists." Munoz , 237 Ill. 2d at 433, 341 Ill.Dec. 485, 930 N.E.2d 999. With those principles in mind, we turn to the insurance policy in question.

¶ 12 The policy in force between Preckshot and Pharmacists Mutual contains a section labeled "Additional Exclusions." Subsection 9 is simply titled "Water," and reads as follows:

" 'We' do not pay for loss or damage caused by:
1) ***
2) ***
3) ***
* * *
4) water below the surface of the ground. This includes water that exerts pressure on or flows, seeps, or leaks through or into:
a) basements, whether paved or not;
b) doors, windows, or other openings;
c) foundations, floors, walls, or paved surfaces; or
d) swimming pools, septic tanks, or other structures[.]"

Preckshot insists that "[t]he plain and ordinary meaning of this exclusion makes it clear that the exclusion only applies to loss or damage and water which is below the surface of the ground."

¶ 13 The grammatical structure of the policy renders the portion of Preckshot's argument relating to the location of the loss or damage plainly incorrect. In short form, the policy indicates that Pharmacists Mutual does "not pay for loss or damage caused by: *** water below the surface of the ground." The presence of the colon-as well as three intervening paragraphs-makes clear that the clause, "below the surface of the ground," applies only to the origination of the "water." The actual loss or damage need not be below the surface of the ground.

¶ 14 Still, Preckshot argues that the water that seeped up through its floor was no longer "water below the surface of the ground" at the time that it caused damage or loss. Thus, Preckshot concludes, the damage was not caused by water below the surface of the ground, but by water above the surface of the ground. Pharmacists Mutual contends that the exclusion references the origin of the water, not its eventual destination.

¶ 15 Preckshot maintains that a contextual analysis of the policy supports its position. Specifically, it contends that subsections (a) through (d) refer primarily "to below-ground structures or ground-level structures that could suffer below-ground damage." Preckshot notes that subsection (a), basements, clearly refers to below-ground structures and that subsection (d), "swimming pools, septic tanks, or other structures," does as well. Preckshot next asserts that "Category (c), foundations, floors, walls, or paved surfaces, reasonably interpreted refers to structures which typically have surfaces that protrude below ground level or are located below ground level like basements and foundation walls, floors or paved surfaces." Finally, Preckshot concludes that those three subsections make clear that subsection (b) must be referring to structures such as "doors leading into basements, and basement windows built into below ground-level window wells."

¶ 16 We agree with Preckshot that contextual analysis of subsections (a) through (d) is necessary, but we disagree with its conclusions. To be sure, basements are necessarily underground. Pools and septic tanks, however, while they may be underground, are not inherently so. Similarly, while foundations are underground, "floors, walls, or paved surfaces" need not be. Finally, and most tellingly, doors need not be underground and windows are almost always above ground. Preckshot strains to argue that because of context, the simple word "doors" should be construed as "doors leading into basements," and the straightforward concept of "windows" should be construed as "basement windows built into below ground-level window wells." This is an attempt to read language into the policy that simply is not there. See Barth , 228 Ill. 2d at 174, 319 Ill.Dec. 852, 886 N.E.2d 976 (finding that the court "may not properly read into that language any additional terms").

¶ 17 Furthermore, the listing of "basements" in subsection (a) tends to indicate that the floors, windows, doors, and walls listed elsewhere would include those not found in basements, lest those additional subsections be rendered wholly unnecessary. See Dowd & Dowd, Ltd. v. Gleason , 181 Ill. 2d 460, 479, 230 Ill.Dec. 229, 693 N.E.2d 358 (1998) ("Courts will generally avoid interpretations that render contract terms surplusage ***."); Central Illinois Light Co. v. Home Insurance Co. , 213 Ill. 2d 141, 154, 290 Ill.Dec. 155, 821 N.E.2d 206 (2004) (applying rule against surplusage in context of insurance policy construction). For example, water that seeps through basement floors or basements walls would be excluded under subsection (a). For subsection (c) to have any effect then, it must be construed to include floors or walls that are not in a basement.

¶ 18 While there are no Illinois cases directly addressing the present issue, certain cases from outside of our jurisdiction are persuasive. The policies at issue in Bull v. Nationwide Mutual Fire Insurance Co. , 824 F.3d 722, 724 (8th Cir. 2016), and Colella v. State Farm Fire & Casualty Co. , 407 F. App'x 616, 618 (3d Cir. 2011), each excluded loss or damage caused by water or water-borne material "below the surface of the ground." In Bull , the damaging water originated in a pipe underneath a basement slab, and the loss included damage to a brick walkway and interior walls. Bull , 824 F.3d at 724. In Colella , a leaking drain line underneath the slab of a house caused damage to, inter alia , areas on the first floor of the home. Colella , 407 F. App'x at 618. Thus, each case, like that before us here, contemplated the situation in which water originating below the ground caused damage above the ground.

¶ 19 In each case, the circuit court held that coverage was excluded. Id. at 622 ; Bull , 824 F.3d at 725. Notably, the insureds in each case argued only that the exclusions referred to natural water below the surface of the ground, rather than water in pipes. While both courts rejected that argument and found in favor of exclusion, neither was forced to directly consider the location of the damage and its interplay with the policy. The same was not true, however, in Carver v. Allstate Insurance Co. , 77 Ark. App. 296, 76 S.W.3d 901, 902-03 (2002), in which a broken water main created a geyser that damaged, inter alia , the ceilings and roof of a home. The insured argued that the exclusion for " '[w]ater *** on or below the surface of the ground' " was inapplicable because the water in the geyser was well above the surface of the ground when it caused the damage in question. Id. at 903. The court rejected the argument outright, stating: "[T]he water from the broken water line was still 'water below the surface of the ground' within the meaning of the exclusion because it originated underground." Id. at 905. We reach the same conclusion here.

¶ 20 We note that Preckshot argues that each of the three above cases is inapplicable because of comparative differences in the policy language. Specifically, Preckshot points out that the policies in question in those cases explicitly referenced water that flows, seeps, or leaks " 'through a building' " ( Bull , 824 F.3d at 724 ; Colella , 407 F. App'x at 618 ) or " 'through any part of the residence premises.' " Carver , 76 S.W.3d at 903. Preckshot insists that because those particular phrases do not appear in the present policy, we should not consider those cases. In making this argument, Preckshot neglects to recognize that the policy in question specifies that "water that exerts pressure on or flows, seeps, or leaks through or into" doors, windows, foundations, floors, or walls is excluded. These are, of course, the constituent parts of a building . Preckshot has merely identified a distinction without a difference.

¶ 21 In summary, the structures listed in subsections (a) through (d) of the policy are not limited to those that are exclusively or inherently underground. Indeed, the listing of "basements" in subsection (a) makes clear that the structures listed elsewhere must not be limited to those in a basement. Accordingly, where water below the surface of the ground "seeps *** through" a floor, that water is necessarily no longer presently below the surface of the ground. The policy thus expressly contemplates the present scenario, where "water below the surface of the ground" seeped through the Preckshot floor and caused damage. Under the terms of the policy, that damage was excluded.

¶ 22 The second exclusion cited by Pharmacists Mutual, listed under "Defects, Errors, or Omissions," provided that Pharmacists Mutual does not pay for loss or damage resulting from "an act, error, or omission (negligent or not) relating to *** construction, repair, modification, [or] workmanship *** of property." Pharmacists Mutual insisted at the trial level, as it does on appeal, that the term "property" in that exclusion is not limited to Preckshot's property. While we are skeptical that this specific exclusion would apply, we need not address the argument directly, having already concluded that coverage was excluded. Similarly, because we find that an exclusion did apply, we need not consider the argument that Pharmacists Mutual acted in bad faith. We therefore affirm in full the circuit court's grant of summary judgment in favor of Pharmacists Mutual.

¶ 23 CONCLUSION

¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Peoria County.

¶ 25 Affirmed.

Presiding Justice Carter and Justice O'Brien concurred in the judgment and opinion.