text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alfred G. LEE, Defendant-Appellant.
    Appeal No. 3-16-0100
    Appellate Court of Illinois, Third District.
    Opinion filed August 1, 2018
   JUSTICE SCHMIDT delivered the judgment of the court, with opinion.

¶ 1 On February 24, 2015, the State charged defendant, Alfred G. Lee, by information with knowingly possessing more than 15, but less than 100, grams of a substance that contained cocaine. Police seized the substance from defendant's home while executing a search warrant in an unrelated criminal investigation. Defendant's pretrial motion to suppress argued that the substance was the fruit of an improper search because it was outside the warrant's scope and not in plain view. The trial court denied the motion. A jury convicted defendant; he now appeals the conviction. He claims that trial counsel provided ineffective assistance by making a frivolous legal argument in support of the motion to suppress; counsel also failed to renew the motion after the officer who found the contraband testified at a subsequent compulsory joinder hearing. Defendant does not challenge his sentence or the trial court's rulings on his motion to suppress and compulsory joinder motion. We affirm defendant's conviction.

¶ 2 BACKGROUND

¶ 3 In October 2014, Sterling police investigated defendant's involvement in a shooting. A witness identified defendant as the shooter. Police obtained a warrant to search defendant's home for evidence related to the shooting. Several law enforcement officers executed the warrant on October 19, 2014. Detective Alex Chavira found the substance under defendant's bed sheets. After the State charged defendant, defense counsel filed a motion to suppress the cocaine substance at issue. Defendant's motion argued that the substance fell outside of the warrant's scope and was not in plain view; police could not expect to find evidence related to the shooting under defendant's bed sheets.

¶ 4 The trial court heard the motion to suppress on April 28, 2015. Chavira testified that he obtained the search warrant and assisted in its execution. After he pulled back defendant's bed sheets, Chavira found knotted, plastic bags that contained a brown, powdery substance. The bags were concealed in a larger plastic bag. In Chavira's experience, this packaging method suggested that the bags contained illicit drugs. He believed that the substance was either heroin or a "bad batch" of cocaine. The court denied defendant's motion to suppress. It concluded that Chavira and the other officers lawfully accessed the location where Chavira found the substance; they saw the substance in plain view while conducting a legal search.

¶ 5 On August 4, 2015, defense counsel filed a motion to dismiss. The motion alleged a speedy trial violation premised on compulsory joinder. Counsel filed a compulsory joinder motion on September 22. It claimed that the State failed to try defendant's drug case within the statutory period ( 725 ILCS 5/103-5 (West 2016) ), which began immediately after police executed the search warrant. Counsel argued that compulsory joinder principles required the State to file the drug charges and join them with the shooting charges immediately after police seized the cocaine substance in October 2014. Instead, the State filed the drug charges after the crime lab confirmed that the substance contained cocaine in February 2015.

¶ 6 Detective Chavira testified at the compulsory joinder hearing on October 6, 2015. For the most part, he restated his previous testimony. However, he added that he had "no idea" what the plastic bags contained when he discovered them during the search. He believed the substance looked like oatmeal. He did not conduct a field test. He did not list the substance as "suspected contraband" in the inventory record from the search. Chavira never knew the substance contained illicit drugs until the crime lab returned its test results in February 2015.

¶ 7 The court denied defendant's speedy trial and compulsory joinder motions. The court stated:

"I think too that because of the unknown substance, the State did not have charges they could file [when police seized the substance] * * * it is fair not only to the State but also to any defendant that the State not file any charges until they know * * * that that substance is contraband."

Neither the State nor police knew the substance's composition until the crime lab tested it and returned the results several months after Chavira seized it. The court also noted that "even if joinder were applicable, we know that it would be prejudicial to the Defendant to try these two cases together" because the shooting and drug charges were unrelated.

¶ 8 Defendant's trial began on October 13, 2015. The substance and the crime lab's test results served as the State's primary evidence. The jury convicted defendant. The court entered the conviction and sentenced him to six years in prison. On December 11, defense counsel filed a motion for a new trial, which renewed the compulsory joinder issue and argued that the State failed to prove defendant guilty beyond a reasonable doubt. The court denied the motion. This appeal followed.

¶ 9 ANALYSIS

¶ 10 Defendant asserts that trial counsel provided ineffective assistance by failing to renew the motion to suppress after Detective Chavira testified at the compulsory joinder hearing. He also claims that counsel made a frivolous argument that the search exceeded the warrant's scope in the motion to suppress; the seizure was improper, not the search. According to defendant, counsel should have renewed the motion after Chavira testified that he could not initially identify the substance with certainty; this testimony rendered the seizure improper. Because counsel failed to renew the motion to suppress, defendant cannot use Chavira's testimony at the compulsory joinder hearing to appeal the trial court's earlier suppression order. See People v. Brooks , 187 Ill. 2d 91, 127-28, 240 Ill.Dec. 607, 718 N.E.2d 88 (1999).

¶ 11 We review ineffective assistance claims under the two-prong test set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The "performance prong" requires defendants to show that counsel performed deficiently under prevailing professional norms. Id. at 687-88, 104 S.Ct. 2052. The "prejudice prong" requires defendants to show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is one sufficient to undermine confidence in the outcome. Id. Even if we assumed, arguendo , that defendant satisfied the performance prong, we would nonetheless affirm his conviction because he cannot demonstrate the requisite prejudice.

¶ 12 The thrust of defendant's prejudice argument is that the State could not have admitted the substance as evidence at trial if counsel argued that Detective Chavira's seizure was unconstitutional: "With the cocaine suppressed, the State would have been unable to continue the prosecution." Although this statement may be true based on this case's facts, it assumes that "the trial court would have had no choice but to suppress the cocaine" if counsel made the seizure argument instead of the search argument. We disagree with defendant's assumption.

¶ 13 In Horton v. California , 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), the Supreme Court officially adopted a long-recognized standard that, for police to properly seize evidence in plain view, its "incriminating character" must be immediately apparent. Defendant claims that the substance's incriminating character was not immediately apparent because Detective Chavira admittedly did not know that the substance contained cocaine. In fact, he testified at the compulsory joinder hearing that the substance looked like oatmeal.

¶ 14 Defendant relies heavily on People v. Humphrey , 361 Ill. App. 3d 947, 296 Ill.Dec. 795, 836 N.E.2d 210 (2005), where a police officer stopped a motorist for speeding. During the stop, the officer noticed a container holding hundreds of pills near the passenger's feet. The officer seized the pills. He later testified that the amount of pills in the container made him believe that they were contraband. It turned out that the pills contained pseudoephedrine; the State charged defendant with unlawful possession of methamphetamine manufacturing chemicals. However, the court held that the officer improperly seized the pills because he did not know that they contained pseudoephedrine or whether possessing the pills constituted a crime. Id. at 950-51, 296 Ill.Dec. 795, 836 N.E.2d 210.

¶ 15 We reject defendant's position that Humphrey should influence our decision in this case. The opinion of one appellate court district, division, or panel is not binding on others. O'Casek v. Children's Home & Aid Society of Illinois , 229 Ill. 2d 421, 440, 323 Ill.Dec. 2, 892 N.E.2d 994 (2008). The Humphrey majority seems to support defendant's position that "immediately apparent" means that a law enforcement officer must immediately know an item is evidence of a crime. That is not the proper standard. To the extent that the Humphrey court held that it is, we decline to follow the court's holding

¶ 16 The Supreme Court has described "immediately apparent" as "an unhappy choice of words, since it can be taken to imply that an unduly high degree of certainty as to the incriminatory character of evidence is necessary." Texas v. Brown , 460 U.S. 730, 741, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). Essentially, the "immediately apparent" element hinges on a probable cause determination; it does not require a law enforcement officer to know that an item is contraband or evidence of a crime. People v. Jones , 215 Ill. 2d 261, 277, 294 Ill.Dec. 129, 830 N.E.2d 541 (2005).

¶ 17 Probable cause " 'is not a high bar.' " District of Columbia v. Wesby , 583 U.S. ----, ----, 138 S.Ct. 577, 586, 199 L.Ed.2d 453 (2018) (quoting Kaley v. United States , 571 U.S. 320, 338, 134 S.Ct. 1090, 1103, 188 L.Ed.2d 46 (2014) ). It exists if, from the standpoint of an objectively reasonable officer, the items or events at issue create a reasonable probability that defendant committed or is committing a crime. See id. at ---- n.2, 138 S.Ct. at 584 n.2 ; Maryland v. Pringle , 540 U.S. 366, 370-71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) ; Jones , 215 Ill. 2d at 277, 294 Ill.Dec. 129, 830 N.E.2d 541. It is an objective, not subjective, test.

¶ 18 Defendant conjures a far-fetched story in an attempt to portray Detective Chavira's seizure as unreasonable. He claims that Chavira "seriously entertained the possibility that these bags contained [defendant's] breakfast, accidentally forgotten in the bed-sheets as [he] packed for his day. [Chavira] entertained that possibility so seriously that he made the conscious choice to refuse to describe the alleged oatmeal as suspected contraband." Based on this hypothetical and Chavira's subjective belief, defendant leaps to the illogical and incorrect conclusion that the cocaine substance's criminal character was not immediately apparent.

¶ 19 Some items that law enforcement officers might associate with "criminal character" do not always demonstrate a reasonable probability that the defendant committed or is committing a crime. For example, it would be unreasonable in some cases to immediately assign criminal character to a firearm, knife, or baseball bat; people commonly use these items as legitimate tools rather than instruments of crime. In this case, however, an objectively reasonable law enforcement officer could immediately infer a reasonable probability that defendant's knotted bags contained illicit drugs, not oatmeal. Although it is legal for people to apportion oatmeal in individual plastic bags and store them in bed sheets, this hypothetical possibility does not render the seizure unreasonable.

¶ 20 Detective Chavira testified that the substance's packaging was consistent with that typically used to store illicit drugs. A substance or item's packaging and/or location can legally justify a seizure. See, e.g. , Brown , 460 U.S. 730, 103 S.Ct. 1535 (officer properly seized cocaine after he saw knotted party balloons and white powder in the defendant's car); Jones , 215 Ill. 2d 261, 294 Ill.Dec. 129, 830 N.E.2d 541 (officer properly seized a small wooden box in the defendant's shirt pocket because he had probable cause to associate it with criminal activity). Chavira had probable cause to seize the substance the moment he discovered it hidden beneath defendant's bed sheets in packaging commonly used to store illicit drugs. It is irrelevant whether Chavira subjectively believed that the substance looked like oatmeal, heroin, or a "bad batch" of cocaine; an objectively reasonable law enforcement officer could properly infer that the suspiciously packaged powder in defendant's bed sheets was probably evidence of a crime.

¶ 21 Because defendant's seizure theory cannot justify suppressing the evidence, he cannot establish that counsel's allegedly frivolous search theory undermined confidence in the trial's outcome-the evidence was admissible either way. We affirm his conviction.

¶ 22 CONCLUSION

¶ 23 For the foregoing reasons, we affirm the judgment of the circuit court of Whiteside County.

¶ 24 Affirmed.

Justice Holdridge specially concurred, with opinion.

Justice O'Brien specially concurred, with opinion.

¶ 25 JUSTICE HOLDRIDGE, specially concurring:

¶ 26 I agree with Justice Schmidt's analysis, including his conclusion that People v. Humphrey , 361 Ill. App. 3d 947, 296 Ill.Dec. 795, 836 N.E.2d 210 (2005), was wrongly decided. In light of Justice O'Brien's endorsement of the majority opinion in Humphrey , I write separately to explain my disagreement with Humphrey .

¶ 27 As Justice O'Malley noted in his dissent in Humphrey , the Humphrey majority misconstrued the probable cause standard and mistakenly applied a subjective test instead of an objective test for determining whether the incriminating character of a substance a substance was "immediately apparent." "[T]he existence of probable cause is a question not of what the officer, possessed of his own peculiar skills and experience, might have believed, but of 'whether [the] historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to * * * probable cause.' " Humphrey , 361 Ill. App. 3d at 963, 296 Ill.Dec. 795, 836 N.E.2d 210 (O'Malley, J., dissenting) (quoting Ornelas v. United States , 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996) ).

¶ 28 Evaluated from the perspective of an objectively reasonable police officer, the facts presented in Humphrey provided probable cause sufficient to justify a seizure of the pills at issue in that case. After he pulled over the defendant's vehicle, the arresting police officer in Humphrey observed a person in the vehicle's passenger seat " 'hunch over' " and perform " 'a lot' " of " 'unusual' " hand movements. Id. at 960, 296 Ill.Dec. 795, 836 N.E.2d 210. When the officer approached the car, he observed "hundreds" of pills stored in a plastic Tupperware container on the floor of the passenger side of the vehicle. The pills had been removed from their original packaging, and the Tupperware container containing the pills was located "in the very area toward which the passenger apparently was reaching when he was suspiciously hunched." Id. In my view, these facts, taken together, would warrant a reasonable police officer to suspect that the pills were illegal contraband, regardless of what the arresting officer actually believed.

¶ 29 Although the majority in Humphrey correctly stated that the existence of probable cause does not depend upon whether the arresting officer "knew" that the substance at issue was contraband ( Humphrey , 361 Ill. App. 3d at 951, 952, 296 Ill.Dec. 795, 836 N.E.2d 210 (majority opinion) ), the Humphrey majority's finding of no probable cause and its reasoning belie that statement. The Humphrey majority appears to have based its finding of no probable cause entirely on the arresting officer's inability to identify the pills at issue as contraband. It did not consider whether the facts and circumstances presented in the case would have warranted a reasonable police officer to conclude that the pills were likely to be contraband.

¶ 30 In her special concurrence, Justice O'Brien suggests that the Tupperware container at issue in Humphrey was "innocent in appearance and not immediately recognizable as contraband," and that the police officer in Humphrey suspected that the pills could be contraband "only because of the number of them in the container." I disagree. As noted above, the pills had been removed from their original packaging and were stored in a Tupperware container that was located exactly where the passenger had been suspiciously reaching at the time of the traffic stop. These facts, coupled with the exceptionally large quantity of the pills, rendered the manner in which the pills were stored suggestive of illegal activity.

¶ 31 Accordingly, I do not join Justice O'Brien's effort to rehabilitate Humphrey . In my view, Humphrey misapplied the probable cause standard governing plain view seizures and reached the wrong result.

¶ 32 JUSTICE O'BRIEN, specially concurring:

¶ 33 I specially concur because while I agree with the majority's disposition, I disagree with its rejection of People v. Humphrey , 361 Ill. App. 3d 947, 296 Ill.Dec. 795, 836 N.E.2d 210 (2005). I believe the case was rightly decided but find it distinguished from the instant case. In Humphrey , the seized contraband was discovered in a "small, clear plastic container holding several hundred small white tablets" in plain view. Id. at 948-49, 296 Ill.Dec. 795, 836 N.E.2d 210. The officer could not identify the pills as contraband but was alerted by the number of pills the container held. Id. at 949, 296 Ill.Dec. 795, 836 N.E.2d 210. The container was innocent in appearance and not immediately recognizable as contraband. In contrast, the substance discovered under Lee's bedsheets was packaged like contraband, with smaller knotted baggies inside a larger baggie.

¶ 34 The detective who discovered the cocaine testified that in his experience, the packaging of the unknown substance was consistent with the packaging used for illegal drugs. He provided his professional background and extensive experience in drug case investigation. He thought the substance could be either heroin or a "bad batch" of cocaine. Unlike the officer in Humphrey , who suspected the pills could be contraband only because of the number of them in the container, the detective here recognized the substance was potentially contraband based on how it was packaged, even if he was unsure what type of contraband was in the baggies.

¶ 35 I agree with the disposition in Humphrey and believe the majority's decision to ignore it is incorrect. However, the facts in this case differ from Humphrey in that the substance discovered here was immediately apparent to the detective as contraband by its packaging.

¶ 36 For those reasons, I specially concur.


source: Caselaw Access Project

license: Public Domain

text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason MARZONIE, Defendant-Appellant.
    NO. 4-16-0107
    Appellate Court of Illinois, Fourth District.
    Filed August 6, 2018 Rehearing denied October 17, 2018
    James E. Chadd, Jacqueline L. Bullard, and Susan M. Wilham, of State Appellate Defender's Office, of Springfield, for appellant.
    Jacqueline M. Lacy, State's Attorney, of Danville (Patrick Delfino, David J. Robinson, and Allison Paige Brooks, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In April 2014, the State charged defendant with (count I) participating in the manufacture of more than 400 grams but less than 900 grams of methamphetamine; (count II) possessing more than 400 grams but less than 900 grams of methamphetamine; (count III) possessing, transporting, or storing a methamphetamine precursor in any form other than a standard dosage form with the intent that less than 10 grams of methamphetamine or a substance containing methamphetamine be manufactured; and (count IV) possessing, transporting, or storing methamphetamine manufacturing material with the intent that it be used to manufacture methamphetamine. 720 ILCS 646/15(a)(2)(D), 60(b)(5), 20(b)(2)(A), 30(b) (West 2014).

¶ 2 In October 2015, the jury found defendant guilty on all counts. In January 2016, the trial court sentenced defendant and assessed various fines and fees against him. The circuit clerk later assessed new fines and fees that the court did not authorize.

¶ 3 Defendant appeals, arguing (1) his convictions violate the one-act, one-crime doctrine, (2) the prosecutor committed reversible error during closing argument, and (3) the additional fines imposed by the circuit clerk must be vacated. We disagree and affirm.

¶ 4 I. BACKGROUND

¶ 5 A. The Information

¶ 6 In April 2014, the State arrested defendant after the police found methamphetamine, methamphetamine precursor, and other materials in his abandoned vehicle. Later that month, the State charged defendant with (count I) participating in the manufacture of more than 400 grams but less than 900 grams of methamphetamine; (count II) possessing more than 400 grams but less than 900 grams of methamphetamine; (count III) possessing, transporting, or storing a methamphetamine precursor in any form other than a standard dosage form with the intent that less than 10 grams of methamphetamine or a substance containing methamphetamine be manufactured; and (count IV) possessing, transporting, or storing methamphetamine manufacturing material with the intent that it be used to manufacture methamphetamine. 720 ILCS 646/15(a)(2)(D), 60(b)(5), 20(b)(2)(A), 30(b) (West 2014).

¶ 7 B. The Jury Trial

¶ 8 In October 2015, defendant's case proceeded to a jury trial.

¶ 9 1. The State's Evidence

¶ 10 Clayton Woodard, a trooper with the Illinois State Police, testified that on April 16, 2014, at 6:15 a.m., he went to a traffic accident in Vermilion County. He found at the scene a damaged construction sign and a vehicle's license plate lying on the side of the road. Woodard stated that he then located an unoccupied Jeep Cherokee approximately three blocks away. It had obvious signs of damage, and its rear license plate matched the license plate he found at the scene of the accident. Woodard testified that (1) he observed items commonly used for manufacturing methamphetamine inside the vehicle and (2) defendant was the registered owner of the vehicle.

¶ 11 Troy Davis, an Illinois State Police trooper, testified that he processed the items found inside the vehicle that were suspected of being used for methamphetamine manufacturing, which included the inner parts of lithium batteries, starting fluid, a garden hose with reinforced tubing, a modified air tank, and coffee filters. Davis stated that a substance weighing 777.8 grams located inside the vehicle field-tested positive for methamphetamine. Davis stated that the police took a 30-milliliter sample of the substance. Davis noted that a white powder found in the vehicle field-tested positive for pseudoephedrine , which is a precursor of methamphetamine. A chemist at the Illinois State Police crime lab later testified that the 30-milliliter sample tested positive for methamphetamine and that the white powder tested positive for pseudoephedrine.

¶ 12 Eric Millis, an evidence custodian for the Vermilion County Metropolitan Enforcement Group (VMEG), testified that he searched the vehicle after the Illinois State Police removed the suspected drugs and found (1) defendant's driver's license, (2) defendant's checkbook, (3) an electric bill and other mail addressed to defendant, and (4) receipts for pseudoephedrine-based cold pills.

¶ 13 Pat Alblinger, a deputy with the Vermilion County Sheriff's Office, testified that he went to the accident scene on April 16, 2014, and was later dispatched to a residence in Danville. Alblinger testified that Erica Bennett and Jesse Harper were at that residence but defendant was not.

¶ 14 Erica Bennett testified that she received a phone call from Harper on the early morning of April 16, 2014. After the phone call, Bennett directed Randy Huskey to go and pick up Harper. Huskey picked up Harper, defendant, and a third person and brought them back to Bennett's home in Danville. Bennett testified that all three people were panicking when they arrived at her house and that defendant left about 20 minutes later. She noted that defendant was already gone when the police arrived at her home. On cross-examination, Bennett admitted frequent drug use during April 2014. She further conceded that she used to be friends with Harper and that Harper used to supply her with methamphetamine. She also conceded that, on the date in question, she originally told the police that Harper was not at her residence. She also admitted that she had pleaded guilty and was on probation in an unrelated methamphetamine case.

¶ 15 Jeremiah Christian, a police officer for the City of Champaign, testified that he located defendant on April 16, 2014, at approximately 4 p.m. Christian testified that defendant, upon opening the door of his residence, spontaneously stated that the police must be here for his missing vehicle. Christian took defendant into custody for questioning.

¶ 16 Benjamin Striger, a police officer for the City of Danville, stated that he used the National Precursor Log Exchange (NPLE) to determine who had purchased the cold pills containing pseudoephedrine. Striger noted that the NPLE is a database that logs the purchase of pseudoephedrine-based cold pills and that individuals must sign for and present a valid photo ID to purchase such pills. Striger stated that four receipts for pseudoephedrine-based cold pills were found in defendant's vehicle. Based on the NPLE database, Striger testified that defendant had purchased pseudoephedrine-based cold pills four times during March and April 2014. He further testified that according to the NPLE database, Harper had not purchased pseudoephedrine-based cold pills since August 2011.

¶ 17 2. The Defense

¶ 18 Following the State's case-in-chief, defendant moved for a directed verdict, which the trial court denied. Defendant declined to testify or present any other evidence.

¶ 19 C. Closing Arguments

¶ 20 The State argued that, based upon the physical evidence and Bennett's testimony, it had proved defendant guilty beyond a reasonable doubt. In response, defendant conceded that the police found methamphetamine and other related materials in his vehicle but maintained that the State failed to prove him guilty beyond a reasonable doubt. Defendant argued that Harper could have been solely responsible for all of the criminal activity, rhetorically asking the jury, "Who is Jesse Harper? Where is Jesse Harper?"

¶ 21 The State objected, and at a sidebar conference outside the presence of the jury, the State asked to inform the jury that Harper had already pleaded guilty to methamphetamine manufacturing and other crimes arising from the same incident. Defendant argued "the State could have subpoenaed Jesse Harper. * * * It's not our burden to establish where Jesse Harper is. We were rightfully pointing out a hole in the State's case." The State responded that defendant opened the door to informing the jury that Harper pleaded guilty to crimes arising from the same incident. Over defendant's objection, the trial court gave the State permission to disclose that Harper pleaded guilty to methamphetamine-related offenses arising out of the same incident.

¶ 22 Following the trial court's ruling, defense counsel argued that "Jesse Harper pleaded guilty to this offense. The secret is out. It was Jesse Harper." Defendant argued that Harper could have used defendant's photo ID to purchase pseudoephedrine-based cold pills. Moreover, defendant argued that Harper could have been solely responsible for the methamphetamine manufacturing. Defendant further argued that Bennett falsely implicated him to protect Harper. Defendant also attacked Bennett's credibility based on her prior drug use and for being on probation.

¶ 23 In rebuttal, the State argued that it had proved defendant guilty beyond a reasonable doubt based on the evidence found in defendant's vehicle, the evidence connecting defendant to the purchase of pseudoephedrine-based cold pills, and Bennett's testimony placing defendant at the scene of the crime. The State further argued that "Jesse Harper * * * plead [sic ] guilty to this offense, and he plead [sic ] guilty to this offense because primarily [sic ] of Erica Bennett's statements that day." The State further argued that Bennett's plea deal "had nothing to do with this case. She testified she wasn't promised anything, that this case had nothing to do with her case. You take that as the truth. There is no evidence stating otherwise, and believe me, if there was, you would hear about it."

¶ 24 D. The Guilty Verdict and Sentencing

¶ 25 In October 2015, the jury found defendant guilty on all counts. In January 2016, the trial court sentenced defendant to 20 years in prison on count I, 20 years on count II, 7 years on count III, and 7 years on count IV. The court ordered that all sentences run concurrently. The court also assessed a $100 VMEG fee, $3000 methamphetamine assessment fee, a $1000 fine, a $100 crime lab fee, and court costs. The circuit clerk later assessed various fines and fees against defendant that the court did not authorize.

¶ 26 This appeal followed.

¶ 27 II. ANALYSIS

¶ 28 Defendant appeals, arguing (1) his convictions violate the one-act, one-crime doctrine, (2) the prosecutor committed reversible error during closing argument, and (3) the additional fines imposed by the circuit clerk must be vacated. We disagree and affirm.

¶ 29 A. The One-Act, One-Crime Doctrine

¶ 30 In this case, defendant was charged with and convicted of count I, participating in the manufacture of more than 400 grams but less than 900 grams of methamphetamine; count II, possessing more than 400 grams but less than 900 grams of methamphetamine; count III, possessing, transporting, or storing a methamphetamine precursor in any form other than a standard dosage form with the intent that less than 10 grams of methamphetamine or a substance containing methamphetamine be manufactured; and count IV, possessing, transporting, or storing methamphetamine manufacturing material with the intent that it be used to manufacture methamphetamine. 720 ILCS 646/15(a)(2)(D), 60(b)(5), 20(b)(2)(A), 30(b) (West 2014).

¶ 31 On appeal, defendant argues that "[b]ecause all offenses include the same physical act-operating a mobile methamphetamine lab on the same day-counts II, III, and IV were included within count I, and these convictions and their sentences should therefore be vacated." Alternatively, defendant argues that possessing methamphetamine is a lesser-included offense of participating in the manufacture of methamphetamine. Compare 720 ILCS 646/60(b)(5) (West 2014), with id. § 15(a)(2)(D). We reject both arguments.

¶ 32 1. The Applicable Law

¶ 33 Under the one-act, one-crime doctrine, a defendant cannot be convicted of multiple offenses "carved from the same physical act." People v. King , 66 Ill. 2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838, 844 (1977). The application of this doctrine is a question of law reviewed de novo . People v. Johnson , 237 Ill. 2d 81, 97, 340 Ill.Dec. 168, 927 N.E.2d 1179, 1189 (2010).

¶ 34 The one-act, one-crime doctrine involves a two-step process. People v. Coats , 2018 IL 121926, ¶ 12, 423 Ill. Dec. 13, 104 N.E.3d 1102. First, a reviewing court determines whether the defendant's conduct involved multiple acts or a single act. People v. Miller , 238 Ill. 2d 161, 165, 345 Ill.Dec. 59, 938 N.E.2d 498, 501 (2010). Multiple convictions for the same act are improper. Id. In this context, the definition of an " 'act' " is " 'any overt or outward manifestation which will support a different offense.' " In re Rodney S. , 402 Ill. App. 3d 272, 282, 342 Ill.Dec. 461, 932 N.E.2d 588, 597 (2010) (quoting King , 66 Ill. 2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838 ). Multiple convictions are permitted when a defendant has committed separate acts, despite the interrelationship of those acts. People v. Poe , 385 Ill. App. 3d 763, 766, 324 Ill.Dec. 667, 896 N.E.2d 453, 456 (2008). Likewise, a defendant can be convicted of two offenses even when a common act is a part of both offenses. People v. Williams , 384 Ill. App. 3d 327, 339, 322 Ill.Dec. 983, 892 N.E.2d 620, 631 (2008). Two or more separate acts do not become one act merely because of proximity of time and location. People v. Pearson , 331 Ill. App. 3d 312, 322, 264 Ill.Dec. 487, 770 N.E.2d 1183, 1193 (2002).

¶ 35 Second, if the conduct involved multiple acts, the reviewing court must determine whether any of the offenses at issue are lesser-included offenses. Miller , 238 Ill. 2d at 165, 345 Ill.Dec. 59, 938 N.E.2d 498. If an offense is a lesser-included offense, multiple convictions are improper. Id.

¶ 36 The abstract-elements approach is the proper method to determine whether one offense is a lesser-included offense of a greater offense. Id. at 174-75, 345 Ill.Dec. 59, 938 N.E.2d 498, 501. Under this approach, a comparison is made of the elements of the two offenses. Id. at 166, 345 Ill.Dec. 59, 938 N.E.2d 498, 501. "If all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser-included offense of the second." Id. In other words, in order to be a lesser-included offense, it must be impossible to commit the greater offense without necessarily committing the lesser offense. Id.

¶ 37 In People v. Bush , 2015 IL App (5th) 130224, ¶ 3, 395 Ill.Dec. 67, 37 N.E.3d 903, the defendant was found in possession of pseudoephedrine, lithium batteries, "Heet" (isopropyl alcohol), and cold packs. The defendant was charged with and convicted of (1) unlawful possession of methamphetamine precursor ( 720 ILCS 646/20(a)(1) (West 2012) ) and (2) unlawful possession of methamphetamine-manufacturing materials ( 720 ILCS 646/30(a) (West 2012) ). Bush , 2015 IL App (5th) 130224, ¶ 3, 395 Ill.Dec. 67, 37 N.E.3d 903. On appeal, the defendant argued that his convictions violated the one-act, one-crime doctrine. Id. ¶ 5. The Fifth District noted that the "defendant possessed two separate items: (1) methamphetamine precursor (pseudoephedrine), and (2) methamphetamine-manufacturing materials (lithium batteries, "Heet," and cold packs)." Id. ¶ 11. The court then concluded that "[w]hile the acts of possession committed by defendant in the instant case are closely related, under the statutory scheme implemented by our General Assembly pursuant to the [Methamphetamine Control and Community Protection Act (Act) ( 720 ILCS 646/1 et seq. (West 2014) ) ], they are separate and distinct acts." Bush , 2015 IL App (5th) 130224, ¶ 12, 395 Ill.Dec. 67, 37 N.E.3d 903. Likewise, the court concluded that "[t]his is not a case where one offense could be considered a lesser-included offense, as methamphetamine precursor and methamphetamine-manufacturing materials are separate and distinct items under the Act." Id. ¶ 11. Accordingly, the court concluded that the defendant's convictions for unlawful possession of methamphetamine precursor and unlawful possession of methamphetamine-manufacturing materials did not violate the one-act, one-crime doctrine. Id. ¶¶ 11-12.

¶ 38 2. Defendant Committed Multiple Acts

¶ 39 Defendant's convictions are not based upon precisely the same physical act. Coats , 2018 IL 121926, ¶ 11, 423 Ill. Dec. 13, 104 N.E.3d 1102. Count I dealt with participation in the manufacture of methamphetamine. 720 ILCS 646/15(a)(2)(D) (West 2014). Count II concerned possession of methamphetamine. Id. § 60(b)(5). Count III dealt with possession, transportation, or storage of methamphetamine precursor . Id. § 20(b)(1). Finally, count IV concerned the possession, transportation, or storage of methamphetamine manufacturing material . Id. § 30(a). Although the acts committed by defendant were closely related, we conclude that "under the statutory scheme implemented by [the legislature], they are separate and distinct acts." Bush , 2015 IL App (5th) 130224, ¶ 12, 395 Ill.Dec. 67, 37 N.E.3d 903.

¶ 40 Defendant is incorrect when he argues that he only committed one act of "operating a mobile methamphetamine lab." Defendant attempts to merge distinct acts merely because they occurred at the same time and place. However, separate acts do not become one act merely because of proximity in time and location. Pearson , 331 Ill. App. 3d at 322, 264 Ill.Dec. 487, 770 N.E.2d 1183. Rather, participating , transporting , storing , and possessing are each separate acts. See id. at 321-22, 264 Ill.Dec. 487, 770 N.E.2d 1183, 1193. Moreover, the interrelationship of separate acts does not prevent multiple convictions. Poe , 385 Ill. App. 3d at 766, 324 Ill.Dec. 667, 896 N.E.2d 453. Accordingly, within the meaning of the one-act, one-crime doctrine, defendant committed separate acts. See Bush , 2015 IL App (5th) 130224, ¶ 12, 395 Ill.Dec. 67, 37 N.E.3d 903.

¶ 41 3. There Is No Lesser Included Crime

¶ 42 Possession of methamphetamine is not a lesser-included offense of participating in the manufacture of methamphetamine. The Act states that "It is unlawful knowingly to possess methamphetamine or a substance containing methamphetamine." (Emphasis added.) 720 ILCS 646/60(a) (West 2014). Generally, in drug cases, the element of possession requires the defendant's knowledge of the presence of the illicit substance and his immediate and exclusive control over it. People v. Scott , 2012 IL App (4th) 100304, ¶ 19, 359 Ill.Dec. 19, 966 N.E.2d 340. In contrast, the Act defines "participation" as follows:

" 'Participate' or 'participation' in the manufacture of methamphetamine means to produce, prepare, compound, convert, process, synthesize, concentrate, purify, separate, extract, or package any methamphetamine, methamphetamine precursor, methamphetamine manufacturing catalyst, methamphetamine manufacturing reagent, methamphetamine manufacturing solvent, or any substance containing any of the foregoing, or to assist in any of these actions, or to attempt to take any of these actions, regardless of whether this action or these actions result in the production of finished methamphetamine ." (Emphasis added). 720 ILCS 646/10 (West 2014).

¶ 43 Under the plain language of the Act, one can be guilty of participating in the manufacture of methamphetamine merely by assisting in the production of methamphetamine. This assistance could occur in many forms such as (1) supplying the raw materials to manufacture methamphetamine; (2) providing the knowledge, equipment, or capital to manufacture methamphetamine; or (3) consenting to the manufacture of methamphetamine on your property. An individual who assists in this capacity could be guilty of participation in methamphetamine manufacturing without ever possessing methamphetamine or a substance containing methamphetamine. Id. § 15(a)(1). Possession, by contrast, requires knowing possession of methamphetamine or a substance containing methamphetamine. Id. §§ 60(a), 20(b)(1), 30(a). Accordingly, methamphetamine possession is not a lesser-included offense of methamphetamine manufacturing because both crimes contain different elements and it is possible to commit the greater offense without necessarily committing the lesser offense. Miller , 238 Ill. 2d at 166, 345 Ill.Dec. 59, 938 N.E.2d 498.

¶ 44 B. Prosecutorial Misconduct

¶ 45 Defendant also argues that the prosecutor committed reversible error when he improperly bolstered Bennett's testimony and argued facts not in evidence. Defendant concedes that he forfeited this argument but argues he can prevail under the plain-error doctrine. We disagree.

¶ 46 1. The Applicable Law

¶ 47 Prosecutors are afforded wide latitude during closing argument and may properly comment on the evidence presented and reasonable inferences drawn from that evidence, respond to comments made by defense counsel that invite a response, and comment on the credibility of a witness. People v. Burman , 2013 IL App (2d) 110807, ¶ 25, 369 Ill.Dec. 613, 986 N.E.2d 1249 ; People v. Blue , 189 Ill. 2d 99, 127, 724 N.E.2d 920, 935, 244 Ill.Dec. 32 (2000). However, a prosecutor may not personally vouch for the credibility of a witness or bolster a witness's testimony.

People v. Effinger , 2016 IL App (3d) 140203, ¶ 24, 403 Ill.Dec. 348, 53 N.E.3d 985. It is also improper for a prosecutor to misstate the evidence or argue facts not in evidence. People v. Green , 2017 IL App (1st) 152513, ¶ 77, 421 Ill.Dec. 474, 100 N.E.3d 491. To determine whether a prosecutor's comment in closing argument was improper, a reviewing court must view such comment in its proper context. People v. Sykes , 2012 IL App (4th) 111110, ¶ 47, 362 Ill.Dec. 239, 972 N.E.2d 1272.

¶ 48 Improper remarks during closing argument are reversible error only when they cause substantial prejudice to the defendant. People v. Thompson , 2013 IL App (1st) 113105, ¶ 79, 375 Ill.Dec. 370, 997 N.E.2d 681. Substantial prejudice occurs if the improper remarks were a material factor in the defendant's conviction. Id. Improper remarks are a material factor if (1) the jury could have reached a contrary verdict had the improper remarks not been made or (2) the reviewing court cannot say that the prosecutor's improper remarks did not contribute to the defendant's conviction. People v. Wheeler , 226 Ill. 2d 92, 123, 313 Ill.Dec. 1, 871 N.E.2d 728, 745 (2007). The strength of the evidence offered against a defendant is often a decisive factor when determining whether the improper statements were a material factor in his conviction. Compare People v. Johnson , 208 Ill. 2d 53, 117, 281 Ill.Dec. 1, 803 N.E.2d 405, 441-42 (2003) (prosecutor's improper statements did not cause substantial prejudice when the State introduced defendant's confession, physical evidence, and the uncontradicted testimony of an eyewitness to the crime), with Wheeler , 226 Ill. 2d at 131, 313 Ill.Dec. 1, 871 N.E.2d 728 (prosecutor's improper remarks caused substantial prejudice when conviction was largely based upon the credibility of the testifying police officers).

¶ 49 2. The Standard of Review and the Plain-Error Doctrine

¶ 50 The Illinois Appellate Court is divided on whether to apply an abuse of discretion standard or de novo review when reviewing allegations of prosecutorial misconduct. See Ryan T. Harding, Division in the Illinois Appellate Court: What is the Appropriate Standard of Review for Alleged Prosecutorial Misconduct During Closing Argument? , 38 N. Ill. U. L. Rev. 504, 508-12 (2018). The First District has applied an abuse of discretion standard. People v. Willis , 2013 IL App (1st) 110233, ¶ 102, 375 Ill.Dec. 636, 997 N.E.2d 947. The Third District and this court have consistently applied de novo review. People v. Palmer , 382 Ill. App. 3d 1151, 1160, 889 N.E.2d 244, 251, 321 Ill.Dec. 340 (2008) ; People v. McCoy , 378 Ill. App. 3d 954, 964, 881 N.E.2d 621, 631-32, 317 Ill.Dec. 453 (2008). Consistent with our court's established precedent, we will continue to apply de novo review. Palmer , 382 Ill. App. 3d at 1160, 321 Ill.Dec. 340, 889 N.E.2d 244 (citing Wheeler , 226 Ill. 2d at 121, 313 Ill.Dec. 1, 871 N.E.2d 728 ); State Farm Fire & Casualty Co. v. Yapejian , 152 Ill. 2d 533, 539-540, 178 Ill.Dec. 745, 605 N.E.2d 539, 542 (1992) (decision of an appellate court is not binding upon other appellate districts).

¶ 51 To preserve an alleged error for appeal, a defendant must object at trial and file a written posttrial motion. People v. Colyar , 2013 IL 111835, ¶ 27, 374 Ill.Dec. 880, 996 N.E.2d 575. Failure to do either results in forfeiture. People v. Sebby , 2017 IL 119445, ¶ 48, 417 Ill.Dec. 756, 89 N.E.3d 675.

¶ 52 Nonetheless, the plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider an unpreserved error when (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. People v. Herron , 215 Ill. 2d 167, 186-87, 294 Ill.Dec. 55, 830 N.E.2d 467, 479-80 (2005).

¶ 53 Typically, the initial step under either prong of the plain-error doctrine is to determine whether there was a clear or obvious error at all. Sebby , 2017 IL 119445, ¶ 49, 417 Ill.Dec. 756, 89 N.E.3d 675. When a defendant claims first-prong error, he must prove there was a plain error and 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. In determining if the evidence was close, a reviewing court must evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of the evidence within the context of the case. Sebby , 2017 IL 119445, ¶ 53, 417 Ill.Dec. 756, 89 N.E.3d 675. If the defendant meets his burden, he has demonstrated actual prejudice and his conviction should be reversed. Id. ¶ 51.

¶ 54 When a defendant claims second-prong error, he must prove that a structural error occurred. People v. Thompson , 238 Ill. 2d 598, 613, 345 Ill.Dec. 560, 939 N.E.2d 403, 413 (2010). A structural error is an error that renders a criminal trial fundamentally unfair or unreliable in determining a defendant's guilt or innocence. People v. Bowens , 407 Ill. App. 3d 1094, 1101, 348 Ill.Dec. 339, 943 N.E.2d 1249, 1258-59 (2011). Structural errors occur in very limited circumstances, such as a complete denial of counsel, denial of self-representation at trial, trial before a biased judge, denial of a public trial, racial discrimination in the selection of a grand jury, or a defective reasonable doubt instruction. People v. Averett , 237 Ill. 2d 1, 12-13, 340 Ill.Dec. 180, 927 N.E.2d 1191, 1198 (2010). Recently, the Supreme Court of the United States has concluded that, subject to exceptions, a violation of the right to a public trial is also a structural error. Weaver v. Massachusetts , --- U.S. ----, 137 S.Ct. 1899, 1909-10, 198 L.Ed.2d 420 (2017).

¶ 55 The defendant bears the burden of persuasion at all times under the plain-error doctrine. Herron , 215 Ill. 2d at 187, 294 Ill.Dec. 55, 830 N.E.2d 467. If the defendant fails to meet his burden, the issue is forfeited and the reviewing court will honor the procedural default. People v. Ahlers , 402 Ill. App. 3d 726, 734, 342 Ill.Dec. 66, 931 N.E.2d 1249, 1255 (2010).

¶ 56 3. This Case

¶ 57 Errors certainly occurred in this case. First, the prosecutor erred when he argued that "Jesse Harper * * * plead [sic ] guilty to this offense, and he plead [sic ] guilty to this offense because primarily [sic ] of Erica Bennett's statements that day." Even though the trial court made a most unusual ruling to permit the State after closing arguments had begun to inform the jury that Harper had pleaded guilty to a methamphetamine charge arising from the same incident, there was still no evidence introduced establishing why he pleaded guilty. Accordingly, by arguing that Harper pleaded guilty because of the strength and veracity of Bennett's statements to the police, the prosecutor's argument was not based on facts in evidence or reasonable inferences from the evidence.

¶ 58 Second, during rebuttal argument, the prosecutor argued that Bennett's plea deal "had nothing to do with this case. She testified she wasn't promised anything, that this case had nothing to do with her case. You take that as the truth . There is no evidence stating otherwise, and believe me, if there was, you would hear about it." (Emphasis added.) The prosecutor's statement to take Bennett's testimony "as the truth" was also improper. See People v. Schaefer , 217 Ill. App. 3d 666, 668-69, 160 Ill.Dec. 530, 577 N.E.2d 855, 856-57 (1991) (improper for prosecutor to offer personal opinion on the truth of a witness's statement).

¶ 59 Despite the existence of these errors, defendant fails to satisfy either prong of the plain-error doctrine. First, defendant fails to demonstrate that the evidence was closely balanced. Instead, after a commonsense assessment of the evidence, we conclude the evidence is undisputed that (1) defendant's vehicle was used as a mobile methamphetamine lab, (2) defendant did not report his vehicle as stolen, (3) defendant's checkbook and driver's license were found in his vehicle, (4) his driver's license was used on multiple occasions to purchase pseudoephedrine-based cold pills, and (5) multiple receipts for pseudoephedrine-based cold pills were found in defendant's vehicle. Even if we exclude the testimony of Bennett, the circumstantial evidence against defendant is overwhelming.

¶ 60 Second, although errors occurred, defendant fails to establish that they were so serious that a structural error occurred. See People v. Shaw , 2016 IL App (4th) 150444, ¶ 72, 402 Ill.Dec. 807, 52 N.E.3d 728 ("The State's closing and rebuttal arguments here do not fit within the limited class of cases where structural error has been found, nor did the arguments affect the fairness of defendant's trial or challenge the integrity of the judicial process."). Therefore, the issue is forfeited, and we will honor the procedural default. Ahlers , 402 Ill. App. 3d at 734, 342 Ill.Dec. 66, 931 N.E.2d 1249.

¶ 61 C. The Improper Fines

¶ 62 Finally, defendant argues that various fines imposed by the circuit clerk were improper and must be vacated. The State concedes this issue. However, in light of the Illinois Supreme Court's recent decision in People v. Vara , 2018 IL 121823, ¶ 23, 425 Ill.Dec. 498, 115 N.E.3d 53, we lack jurisdiction to review the circuit clerk's recording of fines that were not included as a part of the trial court's final judgment. Accordingly, we decline to address this issue.

¶ 63 III. CONCLUSION

¶ 64 For the reasons stated, we affirm the trial court's judgment.

¶ 65 Affirmed.

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


text:
    Freddie WINTERS Jr., Plaintiff-Appellant, v. MIMG LII ARBORS AT EASTLAND, LLC, d/b/a Arbors at Eastland, and Changing Seasons Lawn Landscape, LLC, Defendants-Appellees.
    NO. 4-17-0669
    Appellate Court of Illinois, Fourth District.
    Filed August 14, 2018
    Laura Castagna, of Kelly Law Offices, P.C., of Bloomington, for appellant.
    Danielle N. Malaty, of Kopka Pinkus Dolin PC, of Chicago, for appellee MIMG LII Arbors at Eastland, LLC.
    Barbara Snow Mirdo and Brian P. Thielen, of Thielen, Foley & Mirdo, LLC, of Bloomington, for other appellee.
   JUSTICE STEIGMANN delivered the judgment of the court, with opinion.

¶ 1 In June 2015, plaintiff, Freddie Winters Jr., filed a two-count complaint against MIMG LII Arbors at Eastland, LLC, and Changing Seasons Lawn Landscape, LLC (hereinafter, Arbors and Changing Seasons, respectively). Plaintiff's complaint stated that he was a tenant of Arbors and asserted that Changing Seasons had a contractual obligation to clear snow from the apartment complex. Plaintiff's complaint further asserted that in January 2014, Changing Seasons pushed snow from Arbors' parking lot onto a sidewalk, with the result that the sidewalk was "blocked by a large mound of snow" that "forced the [p]laintiff to navigate around the snow pile" and caused him to "slip and [fall] due to the unnatural accumulation of snow."

¶ 2 Count I of plaintiff's complaint alleged that Arbors had a duty to exercise reasonable care for the safety of the tenants upon its property and that it breached this duty. Count II alleged that Changing Seasons owed plaintiff a duty that it breached when it negligently placed the pile of snow on the sidewalk.

¶ 3 Arbors and Changing Seasons each filed motions for summary judgment in which each argued that it owed no duty to plaintiff because the snow pile was an open and obvious condition. In March 2017, plaintiff filed responses to both motions for summary judgment, arguing that genuine issues of material fact remained as to whether the snow pile was open and obvious. Alternatively, plaintiff argued that (1) the deliberate encounter exception applied or (2) he was owed a duty under a traditional duty analysis.

¶ 4 In April 2017, the trial court granted the motions for summary judgment. The court concluded that "plaintiff has failed to raise a genuine issue of material fact * * * on the issue of duty." The court further concluded that "the large pile of snow and ice on which plaintiff fell was open and obvious as a matter of law and that the deliberate encounter exception does not apply to the facts of this case."

¶ 5 Plaintiff appeals, arguing only that the trial court erred by granting summary judgment because (1) a genuine issue of material fact remained as to whether the unnatural accumulation of snow and ice was an open and obvious condition, (2) a genuine issue of material fact existed as to whether the deliberate encounter exception to the open and obvious rule applied, and (3) plaintiff is owed a duty as a matter of law under a traditional duty analysis. We disagree and affirm.

¶ 6 I. BACKGROUND

¶ 7 A. The Complaint

¶ 8 In June 2015, plaintiff filed a two-count first amended complaint against Arbors and Changing Seasons. Plaintiff's complaint stated that he was a tenant of an apartment complex that Arbors owned and operated and asserted that Changing Seasons had a contractual obligation with Arbors to clear snow from the parking lot.

¶ 9 Plaintiff's complaint further asserted that in January 2014, Changing Seasons pushed snow from Arbors' parking lot onto a sidewalk, resulting in the snow completely covering a portion of the sidewalk. The complaint further alleged that in January 2014, plaintiff left his apartment to walk to Arbors' on-site laundry facility, which was "blocked by a large mound of snow" that "forced the [p]laintiff to navigate around the snow pile," causing him to "slip and [fall] due to the unnatural accumulation of snow." The complaint also asserted that he suffered serious physical injury.

¶ 10 Count I of plaintiff's complaint alleged that Arbors had a duty to exercise reasonable care for the safety of the tenants upon its property and that it was negligent by (1) failing to supervise snow removal from the parking lot so as not to create adverse conditions for its tenants, (2) allowing a snow pile created from snow removal operations to block the sidewalk, (3) failing to warn plaintiff of a dangerous condition on the property, (4) failing to adequately inspect the premises to prevent an unnatural accumulation of snow, (5) failing to provide a safe and alternative path from plaintiff's building to the on-site laundry facility, and (6) allowing conditions to exist on the property that imperiled the safety of one lawfully on the premises. Plaintiff further asserted that these breaches caused his injuries.

¶ 11 Count II alleged that Changing Seasons owed plaintiff a duty of reasonable care when it performed snow removal services. Plaintiff contended that Changing Seasons breached this duty by (1) failing to properly remove snow from the Arbors parking lot, (2) failing to properly supervise its agents, servants, and/or employees during snow removal operations so as not to create adverse conditions for the apartment complex's tenants, (3) pushing a snow pile from the parking lot onto the sidewalk area during snow removal operations, and (4) allowing a snow pile created during snow removal operations to block the sidewalk. Plaintiff asserted that he was injured because of these breaches.

¶ 12 B. Arbors' and Changing Seasons' Answers

¶ 13 In July 2015, Arbors filed an answer to plaintiff's complaint, which, in pertinent part, asserted the affirmative defenses of (1) comparative negligence and (2) the open and obvious doctrine. In December 2016, Changing Seasons filed an answer to the complaint, asserting the affirmative defense of contributory negligence.

¶ 14 C. Depositions and Other Evidence

¶ 15 During depositions, the parties often used an image of Arbors from Google Maps to illustrate the layout of the apartment complex. Similarly, we take judicial notice of an image of Arbors from Google Maps for the purpose of better understanding the statements made during depositions. People v. Clark , 406 Ill. App. 3d 622, 632-34, 346 Ill.Dec. 386, 940 N.E.2d 755, 766-67 (2010) (the Second District took judicial notice of an image from Google Maps to better understand statements made at trial). To better aid the reader, we have labeled the relevant locations and objects and included a compass rose.

¶ 16 1. The Plaintiff

¶ 17 Plaintiff testified that he was a long-term Arbors' tenant and was familiar with the layout of the apartment complex. He lived in building 9, which forms an "L shape" with building 10. Building 9 runs west to east, and building 10 runs north to south. The laundry facility was in the northern end of building 10.

¶ 18 Plaintiff testified that on the afternoon of January 19, 2014, he left his apartment for the laundry facility, exiting on the north side of building 9. He then proceeded west on the sidewalk, and when that sidewalk ended, he proceeded north upon the sidewalk that runs parallel with building 10. He testified that there was a large pile of snow on this northern sidewalk. He acknowledged that he saw this pile of snow before reaching it, and his visibility was not compromised. Plaintiff testified that there was a cutout in the middle of the snow pile, where it appeared other people had walked through. With his laundry basket in hand, plaintiff walked through the cutout in the snow pile. He testified that he was able to see where he was stepping while doing so, and he knew he was walking on snow and ice. Plaintiff testified that while walking through the snow pile, he fell and broke his ankle.

¶ 19 Plaintiff acknowledged that he was aware at the time of the accident that there were other ways to reach the laundry facility from his apartment. One alternative route was to exit the north side of building 9, walk west on the sidewalk, and then, once that sidewalk ended, walk south on the sidewalk in between building 9 and building 10. This path would eventually end with plaintiff entering the western side building 10.

¶ 20 A second alternative path would be to exit the south side of building 9, walk west on the sidewalk, and eventually enter building 10 on the western side. Plaintiff admitted that these alternative paths were an "option."

¶ 21 2. The Witness

¶ 22 Carmen Ashby, a witness to the accident, testified that she was at Arbors on January 19, 2014, to visit her daughter. She looked away after seeing plaintiff walking with a basket of clothes. She heard a "pop," and when she turned around, plaintiff had fallen. She stated she was approximately 30 to 40 feet away from plaintiff. She went over to check on him because he was not moving. She then called emergency services because plaintiff had a bone protruding from his leg.

¶ 23 3. The Owner of Changing Seasons

¶ 24 Brandt Bollmann testified that he is the owner of Changing Seasons. During January 2014, his company had a contract to clear snow from the "drive lanes" of the Arbors' parking lots. He stated that his company was not required to clear snow from the sidewalks but could do so for an extra charge.

¶ 25 Brandt stated that Arbors had designated areas where Changing Seasons was to pile snow. By December 2013, Brandt had already filled the designated areas with snow. He then gave Stephanie Lawrence, the Arbors' manager, the option of either hauling the snow away or finding other locations to push snow. Brandt testified that Lawrence said to push snow "anywhere that we could viably put snow outside of blocking parking spaces and parking lots."

¶ 26 Brandt stated that he and an employee cleared the Arbors' parking lot during the early morning of January 19, 2014. His employee drove a skid loader to push the snow, and he followed behind in a truck spreading salt. He admitted that his employee pushed snow from the parking lot onto the sidewalk in front of building 10. Brandt believed this was an "acceptable result" because Lawrence "basically told us that anywhere we could put snow to go ahead and put it [there]." Brandt further stated that Arbors' "maintenance crew [was] responsible for sidewalks, so [the pile of snow] was not our responsibility." Brandt later acknowledged that Lawrence did not specifically say to push snow on the sidewalks and that, within the parameters of Lawrence's instructions, his employee had discretion of where to push the snow.

¶ 27 4. The Maintenance Technician

¶ 28 Eugene Fordham testified that he was an Arbors' maintenance technician. He works with three other people, and during the early morning of January 19, 2014, their job was to remove snow from the apartment's sidewalks and stoops. He further explained that Changing Seasons clears snow from the parking lots.

¶ 29 Fordham testified that Changing Seasons pushed a "big pile" of snow onto the sidewalk on the eastern side of building 10. He explained that this pile covered the entire width of a section of the sidewalk and was so large and hard that his team could not remove it with snowblowers. (A snowblower is a machine used to clear snow from sidewalks or driveways.) The maintenance technicians did not inform the property manager of the condition because it was a Sunday. Fordham reported the condition to the property manager on January 20, 2014, which was a Monday.

¶ 30 5. The Arbors' Property Manager

¶ 31 Lawrence was the Arbors' property manager during January 2014. She testified that the Arbors' maintenance technicians were responsible for clearing snow from the sidewalks and entryways of the property. The Arbors' parking lot and sidewalks were common areas, and Changing Seasons was contractually obligated to clear snow from the Arbors' parking lot. She further noted that, for an extra charge, Changing Seasons could clear snow from the Arbors' sidewalk.

¶ 32 On January 20, 2014, Lawrence became aware of the pile of snow at issue. She called Changing Seasons that afternoon to "push the pile of snow further back [into] the yard instead of blocking the sidewalk." Changing Seasons charged Arbors $404.50 to clear the sidewalk. Lawrence denied that she ever authorized Changing Seasons to push snow onto the sidewalk. She further testified that Changing Seasons never told her that it piled snow onto the sidewalk.

¶ 33 6. Other Evidence

¶ 34 The parties also submitted other evidence to the trial court, including a layout of the apartment complex, pictures of the snow pile, pictures of the sidewalk, medical records, Arbors' contract for snow removal services with Changing Seasons, plaintiff's lease with Arbors, and various other documents.

¶ 35 D. The Motions for Summary Judgment

¶ 36 In December 2016, Changing Seasons filed a motion for summary judgment, arguing that it owed no duty to plaintiff because the snow pile was an open and obvious condition. In February 2017, Arbors filed a motion for summary judgment, also arguing that it owed no duty to plaintiff because the snow pile was an open and obvious condition.

¶ 37 In March 2017, plaintiff filed responses to both motions for summary judgment, arguing that genuine issues of material fact remained as to whether the snow pile was an open and obvious condition. Alternatively, assuming the snow pile was an open and obvious condition, plaintiff argued that (1) the deliberate encounter exception applied or (2) he was still owed a duty under a traditional duty analysis. Plaintiff also argued to the trial court that Changing Seasons was not entitled to raise the open and obvious defense because it was not an owner or occupier of the property. We note that on appeal, plaintiff does not argue that Changing Seasons was not an owner or occupier of the property and was therefore not entitled to raise the open and obvious defense.

¶ 38 E. The Trial Court's Order Granting Summary Judgment

¶ 39 In April 2017, the trial court granted both defendants' motions for summary judgment. The court concluded that "plaintiff has failed to raise a genuine issue of material fact * * * on the issue of duty." The court further concluded that "the large pile of snow and ice on which plaintiff fell was open and obvious as a matter of law and that the deliberate encounter exception does not apply to the facts of this case."

¶ 40 This appeal followed.

¶ 41 II. ANALYSIS

¶ 42 Plaintiff appeals, arguing only that the trial court erred by granting summary judgment because (1) a genuine issue of material fact remained as to whether the unnatural accumulation of snow and ice was an open and obvious condition, (2) a genuine issue of material fact existed as to whether the deliberate encounter exception to the open and obvious rule applied, and (3) plaintiff is owed a duty as a matter of law under a traditional duty analysis. We disagree.

¶ 43 A. Summary Judgment and the Standard of Review

¶ 44 Summary judgment is proper only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016). When ruling on a motion for summary judgment, courts consider all of the evidence in the light most favorable to the nonmoving party. Country Preferred Insurance Co. v. Groen , 2017 IL App (4th) 160028, ¶ 17, 410 Ill.Dec. 366, 69 N.E.3d 911. To survive a motion for summary judgment, the plaintiff must present a factual basis that would arguably entitle him to a judgment. Essig v. Advocate BroMenn Medical Center , 2015 IL App (4th) 140546, ¶ 38, 392 Ill.Dec. 739, 33 N.E.3d 288. If the plaintiff fails to establish any element of the cause of action, summary judgment for the defendant is the proper result. Id. A court should grant summary judgment only if the right of the moving party is clear and free from doubt. Evans v. Brown , 399 Ill. App. 3d 238, 243, 339 Ill.Dec. 144, 925 N.E.2d 1265, 1270 (2010). A trial court's entry of summary judgment is reviewed de novo . Id. at 244, 339 Ill.Dec. 144, 925 N.E.2d 1265, 1270.

¶ 45 To state a cause of action for negligence, a plaintiff must allege that (1) the defendant owed plaintiff a duty, (2) the defendant breached this duty, and (3) that this breach was the proximate cause of plaintiff's resulting injuries. Lucasey v. Plattner , 2015 IL App (4th) 140512, ¶ 27, 390 Ill.Dec. 393, 28 N.E.3d 1046. If no duty exists, then summary judgment for the defendant is proper. Pence v. Northeast Illinois Regional Commuter R.R. Corp. , 398 Ill. App. 3d 13, 17, 337 Ill.Dec. 1003, 923 N.E.2d 854, 857 (2010).

¶ 46 B. The Existence of a Duty

¶ 47 1. The Four Traditional Duty Factors

¶ 48 Whether the law imposes a duty of reasonable care upon a defendant for the benefit of the plaintiff depends upon the nature of their relationship. Simpkins v. CSX Transportation, Inc. , 2012 IL 110662, ¶ 18, 358 Ill.Dec. 613, 965 N.E.2d 1092. When determining whether a duty exists, courts primarily consider the four traditional duty factors. Id. These four duty factors are (1) the likelihood of injury, (2) the reasonable foreseeability of injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Id. Courts also consider public policy when determining whether a duty exists. Id. ¶ 17. If a duty is found to exist, the general rule is that a defendant owes his or her invitees and licensees a duty of reasonable care under the circumstances. Grant v. South Roxana Dad's Club , 381 Ill. App. 3d 665, 673, 319 Ill.Dec. 780, 886 N.E.2d 543, 551 (2008).

¶ 49 2. The Open and Obvious Doctrine

¶ 50 The open and obvious doctrine affects the first and second duty factors. Bruns v. City of Centralia , 2014 IL 116998, ¶ 19, 386 Ill.Dec. 765, 21 N.E.3d 684 ; Wilfong v. L.J. Dodd Construction , 401 Ill. App. 3d 1044, 1056, 341 Ill.Dec. 301, 930 N.E.2d 511, 523 (2010).

¶ 51 A condition on the land is "open and obvious" when a reasonable person in the plaintiff's position, exercising ordinary perception, intelligence, and judgment, would recognize both the condition and the risk involved. Olson v. Williams All Seasons Co. , 2012 IL App (2d) 110818, ¶ 42, 363 Ill.Dec. 117, 974 N.E.2d 914. Normally, the open and obvious doctrine applies to conditions like fire or bodies of water; however, it can extend to other conditions such as sidewalk defects. Burns v. City of Chicago , 2016 IL App (1st) 151925, ¶ 45, 406 Ill.Dec. 68, 59 N.E.3d 846.

¶ 52 The two exceptions to the open and obvious doctrine are (1) the distraction exception and (2) the deliberate encounter exception. Sollami v. Eaton , 201 Ill. 2d 1, 15, 265 Ill.Dec. 177, 772 N.E.2d 215, 223 (2002). The distraction exception applies when the possessor of land has reason to expect that his or her invitees or licenses may be distracted and will therefore fail to discover or protect against the open and obvious danger. Id. (citing Restatement (Second) of Torts § 343A(1) (1965) ). This exception will apply only when evidence exists from which the court can infer that the plaintiff was actually distracted. City of Centralia , 2014 IL 116998, ¶ 22, 386 Ill.Dec. 765, 21 N.E.3d 684.

¶ 53 The deliberate encounter exception applies when the possessor of land has reason to expect that his or her invitee or licensee will proceed to encounter the known or obvious danger because a reasonable person in plaintiff's position would do so. Sollami , 201 Ill. 2d at 15, 265 Ill.Dec. 177, 772 N.E.2d 215 (citing Restatement (Second) of Torts § 343A(1) cmt. f , at 220 (1965) ). The deliberate encounter exception is usually applied in cases involving some kind of economic compulsion. Id. at 16, 265 Ill.Dec. 177, 772 N.E.2d 215. However, economic compulsion is not a per se requirement of the deliberate encounter exception. Id. ; Morrissey v. Arlington Park Racecourse, LLC , 404 Ill. App. 3d 711, 725-26, 343 Ill.Dec. 636, 935 N.E.2d 644, 656 (2010).

¶ 54 3. The Application of the Open and Obvious Doctrine

¶ 55 When a condition is open and obvious, the first duty factor weighs against imposing a duty because courts assume that persons encountering potentially dangerous conditions will appreciate and avoid the risk, making the likelihood of injury slight. City of Centralia , 2014 IL 116998, ¶ 35, 386 Ill.Dec. 765, 21 N.E.3d 684. Likewise, when a condition is open and obvious, the second factor weighs against imposing a duty "because a defendant is ordinarily not required to foresee injury from a dangerous condition that is open and obvious." Id.

¶ 56 Conversely, when an exception to the open and obvious doctrine applies, the outcome of the duty analysis with respect to the first two factors is "reversed." (Internal quotation marks omitted.) Id. ¶ 20. The outcome is reversed because "where an invitee is likely either to fail to apprehend the danger because he is distracted or to deliberately encounter the danger because of a lack of a better alternative, an injury is both likely and foreseeable." Belluomini v. Stratford Green Condominium Ass'n , 346 Ill. App. 3d 687, 692, 282 Ill.Dec. 82, 805 N.E.2d 701, 705 (2004) (cited with approval in City of Centralia , 2014 IL 116998, ¶ 20, 386 Ill.Dec. 765, 21 N.E.3d 684 ). Accordingly, the first and second factors will weigh toward imposing a duty when an exception to the open and obvious doctrine applies.

¶ 57 The third and fourth factors take into account, as a matter of policy, the efficient placement of the burden of avoiding the injury. Belluomini , 346 Ill. App. 3d at 692, 282 Ill.Dec. 82, 805 N.E.2d 701. The appropriate weight given to these four factors depends upon the unique circumstances of an individual case. See Simpkins , 2012 IL 110662, ¶ 18, 358 Ill.Dec. 613, 965 N.E.2d 1092.

¶ 58 4. The Standard of Review

¶ 59 When no dispute of material fact exists, whether a condition is open and obvious is a question of law. Alqadhi v. Standard Parking, Inc. , 405 Ill. App. 3d 14, 17, 345 Ill.Dec. 145, 938 N.E.2d 584, 587 (2010). Likewise, when there is no dispute of material fact, whether an exception to the open and obvious doctrine applies is a question of law. Morrissey , 404 Ill. App. 3d at 728, 343 Ill.Dec. 636, 935 N.E.2d 644. Whether a duty exists in a particular case is a question of law this court reviews de novo .

Simpkins , 2012 IL 110662, ¶ 14, 358 Ill.Dec. 613, 965 N.E.2d 1092.

¶ 60 C. This Case

¶ 61 In this case, plaintiff argues (1) a genuine issue of material fact remained as to whether the unnatural accumulation of snow and ice was an open and obvious condition, (2) a genuine issue of material fact existed as to whether the deliberate encounter exception to the open and obvious rule applied, and (3) plaintiff is owed a duty as a matter of law under a traditional duty analysis. We disagree.

¶ 62 1. The Pile of Snow Was Open and Obvious

¶ 63 A condition on the property is "open and obvious" when a reasonable person in the plaintiff's position, exercising ordinary perception, intelligence, and judgment, would recognize both the condition and the risk. Williams All Seasons Co. , 2012 IL App (2d) 110818, ¶ 42, 363 Ill.Dec. 117, 974 N.E.2d 914. When there is no dispute about the physical nature of the condition, whether a condition is open and obvious is a question of law. Choate v. Indiana Harbor Belt R.R. Co. , 2012 IL 112948, ¶ 34, 366 Ill.Dec. 258, 980 N.E.2d 58.

¶ 64 In this case, no one disputed the physical nature of the snow pile. Plaintiff testified that he slipped on a large pile of snow on the sidewalk. Plaintiff stated that he saw this pile of snow but decided to walk on it anyway. He further stated that he knew he was walking upon ice and snow.

¶ 65 Fordham, the maintenance technician, testified that Changing Seasons pushed a "big pile" of snow onto the sidewalk. He stated the snow pile was so big and hard that his team could not remove it with snowblowers. The owner of Changing Seasons admitted that his employee pushed a pile of snow onto the sidewalk. The Arbors' property manager stated that she later hired Changing Seasons to remove this pile of snow from the sidewalk. Accordingly, because there is no genuine issue of material fact, whether the snow pile was open and obvious is a question of law. Id.

¶ 66 Given the above testimony, we conclude that the pile of snow was open and obvious as a matter of law. Plaintiff testified that his visibility was not obstructed on the day he fell. He further stated that he was aware of the pile of snow. He also testified that as he was walking on the pile of snow, he knew he was walking on snow and ice. A reasonable person in plaintiff's position, exercising ordinary perception, intelligence, and judgment, would have noticed the large pile of snow and realized the risk of walking upon it. See Sandoval v. City of Chicago , 357 Ill. App. 3d 1023, 1029, 294 Ill.Dec. 310, 830 N.E.2d 722, 728 (2005) (concluding that a reasonable person exercising ordinary care would recognize and appreciate the risk in traversing a portion of the sidewalk that had a piece of concrete sticking upright approximately three to four inches in the air).

¶ 67 2. The Deliberate Encounter Exception Does Not Apply

¶ 68 Plaintiff argues that a genuine issue of material fact existed as to whether the deliberate encounter exception applied. We disagree.

¶ 69 First, no issue of material fact is present. Plaintiff acknowledged that before the accident occurred, he knew there were multiple ways to reach the laundry facility other than to walk through the pile of snow. Even though plaintiff admitted those other paths were an "option" for him to take, he chose to walk on the large pile of snow. Fordham also testified that there were multiple paths to reach the laundry facility from plaintiff's apartment building.

¶ 70 Second, the deliberate encounter exception does not apply as a matter of law to these undisputed facts. The deliberate encounter exception applies when the possessor of land has reason to expect that an invitee or licensee will proceed to encounter a known or obvious danger because a reasonable person in plaintiff's position would do so. Sollami , 201 Ill. 2d at 15, 265 Ill.Dec. 177, 772 N.E.2d 215.

¶ 71 Further, as we earlier noted, the deliberate encounter exception is usually applied in cases involving some kind of economic compulsion. Id. at 16, 265 Ill.Dec. 177, 772 N.E.2d 215. For example, in Ralls v. Village of Glendale Heights , 233 Ill. App. 3d 147, 150-51, 174 Ill.Dec. 140, 598 N.E.2d 337, 340-41 (1992), the plaintiff, a foreman on a construction site, needed to reach the pipes in a partially constructed building. The plaintiff had two options to reach the pipes: (1) a shorter but ice covered earthen incline or (2) a perimeter path that was longer but presumably safer. Id. at 150, 174 Ill.Dec. 140, 598 N.E.2d 337. The foreman fell on the ice covered earthen incline. See id. at 150-51, 174 Ill.Dec. 140, 598 N.E.2d 337. The trial court found that the landowner owed no duty in part because the condition was open and obvious. Id. at 151, 174 Ill.Dec. 140, 598 N.E.2d 337. The Second District reversed, finding that the deliberate encounter exception applied because it was reasonably foreseeable that workers on the jobsite would use the incline because it was the shortest path. Id. at 151, 174 Ill.Dec. 140, 598 N.E.2d 337.

¶ 72 Likewise, in Morrissey , 404 Ill. App. 3d at 713, 343 Ill.Dec. 636, 935 N.E.2d 644, the plaintiff, a professional horse trainer, had two options to reach the training track: (1) an eastern path that was shorter but was often slippery or (2) a western path that was much longer but was presumably safer. While taking the eastern path, plaintiff was injured when his horse fell. Id. During discovery, individuals disagreed on what path was reasonable to take. Id. at 719-22, 343 Ill.Dec. 636, 935 N.E.2d 644. Based upon this record, the First District concluded that a genuine issue of material fact existed as to whether the defendant could have anticipated that plaintiff would deliberately encounter this open and obvious condition. Id. at 728, 343 Ill.Dec. 636, 935 N.E.2d 644.

¶ 73 Conversely, in Hastings v. Exline , 326 Ill. App. 3d 172, 173, 260 Ill.Dec. 220, 760 N.E.2d 993, 994-95 (2001), the plaintiff went to the defendant's mobile home for a social visit. Plaintiff had two ways to exit defendant's mobile home: (1) the front door or (2) the back door. Id. The defendant preferred that guests use the mobile home's back door. Id. However, the defendant conceded that the back door's steps were dangerous. Id. The trial court granted defendant's motion for summary judgment. Id. This court affirmed, first concluding that the back door's steps were an open and obvious danger. Id. Further, we reasoned that the deliberate encounter exception did not apply because the plaintiff failed to show that "a reasonable person in her position would have found greater utility in choosing to use [defendant's] back door than in using her front door, given the respective conditions of these two exits." Id. at 177, 260 Ill.Dec. 220, 760 N.E.2d 993.

¶ 74 The undisputed facts of this case show that plaintiff was walking on the sidewalk to do his personal laundry at Arbors' laundry facility. Plaintiff was not at his place of employment or facing any other type of economic compulsion. Plaintiff was aware of other reasonable alternative routes to the laundry facility, but instead of choosing to take an alternative route, he proceeded upon a path which had a large pile of snow. He then walked over this snow pile and fell.

¶ 75 Similar to Hastings , we conclude plaintiff has failed to demonstrate that a reasonable person in his position would have found greater utility in choosing to walk over the snow pile instead of using one of the alternative paths. Id. Plaintiff failed to demonstrate that the alternative paths were covered in snow or were otherwise dangerous. See id. ("Theoretically, the case might be different had Hastings provided evidence that the front exit presented an equal (or worse) peril.").

¶ 76 Moreover, unlike Morrissey , the alternative paths to the laundry facility were only a minor inconvenience. See Morrissey , 404 Ill. App. 3d at 713, 343 Ill.Dec. 636, 935 N.E.2d 644. Likewise, time was not "of the essence" for plaintiff to do his personal laundry. See id. at 728, 343 Ill.Dec. 636, 935 N.E.2d 644. Further, although plaintiff was using the shortest path, plaintiff was not under any threat of economic compulsion. Compare Hastings , 326 Ill. App. 3d at 177, 260 Ill.Dec. 220, 760 N.E.2d 993 (defendant was entitled to summary judgment when plaintiff injured when walking on stairs with an open and obvious defect during a social visit when the house had another exit that was not alleged to be defective), with Ralls , 233 Ill. App. 3d at 151, 174 Ill.Dec. 140, 598 N.E.2d 337 (deliberate encounter exception applied to plaintiff's fall while walking on an incline because it was reasonably foreseeable that workers on the jobsite would use the incline because it was the shortest path).

¶ 77 3. The Traditional Duty Factors

¶ 78 Plaintiff argues that even if the condition was open and obvious and no exception applies, he was still owed a duty under a traditional duty analysis. We disagree.

¶ 79 A duty may still exist even if a condition is open and obvious. City of Centralia , 2014 IL 116998, ¶ 34, 386 Ill.Dec. 765, 21 N.E.3d 684. A court determines the existence of duty primarily by considering the four traditional duty factors of (1) the likelihood of injury, (2) the reasonable foreseeability of injury, (3) the magnitude of the burden of guarding against the injury, and (4) the consequences of placing that burden on the defendant. Id.

¶ 80 On the facts of this case, the first factor weighs against imposing a duty because courts assume that persons encountering an open and obvious condition will appreciate and avoid the risk. Id. ¶ 35. To that point, plaintiff stated that he saw the large pile of snow and was aware of multiple ways to reach the laundry facility. Plaintiff could have avoided his injury by taking a readily available alternative path, which would have taken little effort. The second factor also weighs against imposing a duty because a defendant is ordinarily not required to foresee injury from an open and obvious condition. Id. The third and fourth factors also weigh against imposing a duty. Belluomini , 346 Ill. App. 3d at 692, 696, 282 Ill.Dec. 82, 805 N.E.2d 701 ; see City of Centralia , 2014 IL 116998, ¶ 36, 386 Ill.Dec. 765, 21 N.E.3d 684. Therefore, under the four traditional duty factors, defendants did not owe a duty to plaintiff.

¶ 81 III. CONCLUSION

¶ 82 For the reasons stated, we affirm the trial court's order.

¶ 83 Affirmed.

Presiding Justice Harris and Justice Cavanagh concurred in the judgment and opinion.