People v. Anderson ( 2011 )


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  •                                           FIRST DIVISION
    February 14, 2011
    No. 1-08-0500
    _________________________________________________________________
    IN THE
    APPELLATE COURT OF ILLINOIS
    FIRST JUDICIAL DISTRICT
    _________________________________________________________________
    THE PEOPLE OF THE STATE OF ILLINOIS, )   Appeal from the
    )   Circuit Court of
    Plaintiff-Appellee,       )   Cook County.
    )
    v.                        )   No. O5C6-61126-01
    )
    JOHN ANDERSON,                       )   Honorable
    )   Michelle M. Simmons,
    Defendant-Appellant.      )   Judge Presiding.
    PRESIDING JUSTICE HALL delivered the judgment of the court,
    with opinion.
    Justices Lampkin and Rochford concurred in the judgment and
    opinion.
    OPINION
    Following a jury trial, the defendant, John Anderson, was
    found guilty of residential burglary.    The trial court imposed a
    sentence of 20 years' imprisonment in the Department of
    Corrections.   The defendant appeals.
    On appeal, the defendant raises the following issues: (1)
    whether the denial of his motion to suppress was error; (2)
    whether it was error to admit evidence which permitted the jury
    to find the defendant guilty of an uncharged residential
    burglary; (3) whether it was error to allow the jury to view a
    No. 1-08-0500
    certified copy of the defendant's previous conviction, which
    contained prejudicial surplusage; (4) whether the defendant's
    testimony in support of his defense was inadmissible hearsay; (5)
    whether the prosecutor's remarks in closing argument deprived the
    defendant of a fair trial; (6) whether it was error to deny
    defense counsel's request to question the venire to ascertain any
    bias based on the defendant's prior conviction; and (7) whether
    the cumulative effect of the alleged errors denied the defendant
    a fair trial and due process of law.   We affirm the defendant's
    conviction and sentence.
    The defendant was charged with a single count of residential
    burglary.    The indictment charged that, on or about September 17,
    2005, the defendant entered the residence of Joann Hess with the
    intent to commit a theft.   See 720 ILCS 5/19-3(a) (West 2004).
    In response to the defendant's request for a bill of particulars,
    the State identified the date and time of the offense as on or
    about September 17, 2005, at approximately 2:39 a.m., and that it
    occurred at or near 12316 Vincennes, Blue Island, Illinois.
    As the defendant does not challenge the sufficiency of the
    evidence, only a brief summary of the evidence at trial is
    necessary.   Evidence pertinent to an issue raised on appeal will
    2
    No. 1-08-0500
    be set forth in connection with that issue.
    SUMMARY OF TRIAL EVIDENCE
    Joann and Jeffrey Hess resided at 12316 Vincennes Avenue in
    Blue Island.    On September 16, 2005, the Hesses attended a party.
    At approximately 2 a.m., on September 17, 2001, Mrs. Hess
    returned to their residence and discovered evidence of a
    burglary: the front door was unlocked, and jewelry, cash and gas
    cards were missing.   After being notified of the burglary, Mr.
    Hess returned to the residence.   As the Hesses stood in their
    kitchen, a man, later identified as the defendant, entered the
    residence through the front door and began looking around.   When
    Mrs. Hess cried out that the man was back, the defendant fled the
    house, pursued by Mr. Hess.   Mr. Hess managed to restrain the
    defendant.   The defendant told Mr. Hess that if he did not call
    the police, he would get the Hesses' property returned to them.
    The police arrived, and a search of the defendant revealed a set
    of car keys, which had been on the kitchen counter of the
    residence when Mrs. Hess left for the party.
    The defendant gave a statement to Blue Island police
    officers.    Initially, the defendant had acted as a lookout while
    a friend of his, Cat Daddy, entered the Hess residence and
    3
    No. 1-08-0500
    removed some items.   Cat Daddy shared the proceeds with his
    girlfriend and then told the defendant to return to the Hess
    residence and see what else he could take.     When the defendant
    returned to the Hess residence, he was confronted by the
    homeowner.   However, at trial the defendant testified that, prior
    to going to the Hess residence, he had witnessed Mrs. Hess giving
    a set of keys to Cat Daddy's brother in exchange for drugs.     The
    keys were then given to the defendant who went to the Hess
    residence only to exchange the keys for $20.
    The jury found the defendant guilty of residential burglary.
    Following the denial of his motion for a new trial, the defendant
    was sentenced to 20 years' imprisonment.   This timely appeal
    followed.
    ANALYSIS
    I. Denial of Motion to Suppress Statement
    The defendant contends that the trial court erred when it
    denied his motion to suppress the inculpatory statement he gave
    to police following his arrest.
    A. Pertinent Evidence
    At the hearing on the motion to suppress, the following
    testimony was presented by the parties.
    4
    No. 1-08-0500
    Bernadine Rzab1 testified that, on September 17, 2005, she
    was a detective with the Blue Island police department.     After
    reporting for work at 3 p.m.,     Officer Rzab was informed that the
    defendant, a burglary suspect, had been taken into custody at
    approximately 2:45 a.m. that morning.     At approximately 4:30
    p.m., Officer Rzab and Corporal Kevin Sisk interviewed the
    defendant.
    Officer Rzab advised the defendant of his Miranda rights.
    She had the defendant read aloud each of the rights from the
    printed form.     As he read each right, she asked if he understood
    each right.     He indicated he did and placed his initials by each
    right.     Both officers signed the waiver of rights form after the
    defendant signed it.
    After signing the waiver form, the defendant agreed to speak
    to the officers and agreed that his statement could be summarized
    in writing.     The conversation lasted approximately 40 minutes.
    The defendant appeared coherent and had no difficulty forming
    sentences.     After the defendant gave his statement, Officer Rzab
    1
    The record reflects that Officer Rzab also spelled her name
    "Azab."
    5
    No. 1-08-0500
    had him review what she wrote, and the defendant agreed it was
    accurate.   The defendant also acknowledged in the statement that
    he had been treated well while in custody and that he was not
    forced to make the statement.
    When questioned about the defendant's physical condition,
    Officer Rzab stated that he appeared fine and that there was no
    change in his physical condition during the interview.    The
    defendant never stated that he suffered from diabetes or that he
    was taking insulin.   She denied that the defendant told her that
    he needed to take his insulin or that he told her he did not
    understand the proceedings because he was ill.    She never denied
    medication to the defendant, and there was no discussion
    regarding the defendant's need to take medication.
    On cross-examination, Officer Rzab testified that she was
    unaware of whether the defendant had been given any food prior to
    beginning her interview with him.     She did not ask the defendant
    if he needed food.    She acknowledged that she was unfamiliar with
    the defendant's "normal" demeanor.    She again denied that the
    defendant told her he was a diabetic or that he requested
    insulin.    She did not recall telling the defendant that she would
    help him get insulin after their discussion.    Officer Rzab denied
    6
    No. 1-08-0500
    that she escorted the defendant to another room to make a
    telephone call to obtain insulin.
    The defendant testified that he was 45 years of age and had
    been an insulin-dependent diabetic since 1984.    He took insulin
    twice a day, in the morning and the evening.    Following his
    arrest, he was placed in a holding cell at approximately 2:40
    a.m.    He had no medication with him, and he was not offered any
    food or anything to drink.    He had last taken his insulin the
    morning of September 16, 2005, and had last eaten around 8:30
    p.m. the evening of the 16th.
    When he entered the interview room, he was feeling ill; he
    had a severe headache, cramps, he was sweating, and feeling
    nauseated.    He told Officer Rzab that he was an insulin-dependent
    diabetic and need his insulin.    He also told her that he had some
    insulin at his godmother's residence.    The defendant was not
    wearing his glasses, which, due to his diabetes, he needed in
    order to see clearly.
    The defendant testified that he repeatedly told Officer Rzab
    that he was ill and needed his insulin.    Officer Rzab responded
    that once they concluded the interview, she would see about
    obtaining insulin for the defendant.    He did not recall Officer
    7
    No. 1-08-0500
    Rzab asking if he wanted his statement in writing, but he did
    recall Officer Rzab reading the statement to him and telling him
    that if he signed it, he could make a telephone call to get the
    insulin.   The defendant did not read the written statement.
    After the defendant signed the statement, Officer Rzab took
    the defendant into the squad room so he could telephone his
    godmother, Elizabeth Broadway.   He spoke to Ms. Broadway, but she
    was unable to bring his insulin to the police station.   After he
    concluded the call, Officer Rzab told him she would see about
    getting him insulin.   The defendant was then returned to his
    cell.   When he was taken to bond court the next morning, he
    passed out and woke up in the hospital.
    On cross-examination, the defendant testified that, while in
    custody, he had three meals, each consisting of a cheeseburger
    and a soft drink.    The first time he ate was after he signed the
    statement.   The defendant maintained that he signed the statement
    because he was feeling ill.   He acknowledged that, despite not
    having his glasses, he was able to place his initials on the
    lines of the form.   The defendant pointed out that three of the
    letters of his signature on the waiver of rights form were not
    exactly on the line.   However, he acknowledged that he signed on
    8
    No. 1-08-0500
    the lines, including a slanted line, in three places on his
    statement.
    On redirect examination, the defendant testified that much
    of the food he consumed while in custody was not good for him.
    He passed out because he had not taken his insulin since the
    morning of September 16, 2005.   He was able to sign the statement
    because it was placed right in front of him.    On re-cross-
    examination, the defendant maintained that he was not given a
    choice of food; he ate because he was hungry.
    Corporal Kevin Sisk testified that on September 17, 2005, he
    was a corporal detective with the Blue Island police department.
    Officer Rzab and he conducted an interview of the defendant.     The
    defendant did not appear ill during the interview.    He appeared
    coherent and did not have any difficulty communicating during the
    interview.   He made no request of either officer.   On cross-
    examination, Corporal Sisk acknowledged that he was not familiar
    with the defendant's normal appearance.
    The State requested that the trial court take judicial
    notice that, in bond court on September 18, 2005, the judge set
    bond but issued a "no body" mittimus for the defendant.    The
    trial court denied the motion to suppress.
    9
    No. 1-08-0500
    B. Standard of Review
    In reviewing a trial court's ruling on a motion to suppress,
    we apply a two-part standard.   While we will not reverse the
    trial court's factual findings unless they are against the
    manifest weight of the evidence, the trial court's ultimate
    determination is reviewed de novo.    People v. Luedemann, 
    222 Ill. 2d 530
    , 542, 
    857 N.E.2d 187
     (2006).
    C. Discussion
    In determining whether a confession is voluntary, the court
    must consider the totality of the circumstances.   People v.
    Gorgis, 
    337 Ill. App. 3d 960
    , 970-71, 
    787 N.E.2d 329
     (2003).
    Factors to be considered include the defendant's age,
    intelligence, background, experience, mental capacity, education,
    physical condition at the time of questioning, and any physical
    or mental abuse by police, including the existence of threats or
    promises.   Gorgis, 
    337 Ill. App. 3d at 971
    .
    The defendant maintains that the police denied him food,
    water and medical attention until he provided a confession to the
    residential burglary charge.    The State initially responds that
    the defendant has forfeited the issue because he did not
    specifically allege it in his motion to suppress or raise it in
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    No. 1-08-0500
    his motion for a new trial.
    The purpose behind the waiver rule is to ensure that the
    trial court was given the opportunity to correct any errors
    before they are raised on appeal.    People v. Bennett, 
    376 Ill. App. 3d 554
    , 567, 
    876 N.E.2d 256
     (2007).    In support of his
    motion to suppress and in his testimony at trial, the defendant
    argued that he was not given any food and was denied insulin
    until he gave a statement to the detectives.    In his motion for a
    new trial, the defendant alleged that the denial of his motion to
    suppress was error.   In denying the defendant's motion for a new
    trial, the trial court was clearly aware of the arguments the
    defendant raised in contesting that his confession was voluntary.
    As the trial court had the opportunity to consider the
    defendant's arguments both prior to and after the trial, the
    issue was not forfeited.
    The defendant maintains that evidence established that the
    officers withheld insulin, food and water to the defendant until
    he agreed to give them a statement.    While the fact that the
    defendant was a diabetic was uncontradicted, what is disputed in
    this case is whether he informed the officers that he was a
    diabetic and needed insulin.   In contrast to the defendant's
    11
    No. 1-08-0500
    testimony, the officers maintained that the defendant made no
    complaints or requests during the interview, never informed them
    that he was a diabetic and required insulin, and appeared alert
    and coherent during the interview.
    In ruling on a motion to suppress, the trial court must
    resolve conflicts in the evidence and determine the credibility
    of the witnesses.   Gorgis, 
    337 Ill. App. 3d at 971
    .   The trial
    court is in a better position than the reviewing court to assess
    the credibility and demeanor of the witnesses who testified at
    the hearing and to assess the relevant facts.   Gorgis, 
    337 Ill. App. 3d at 971
    .   In this case, credibility was the determinative
    factor in the outcome of the hearing.   The trial court resolved
    the conflicts in the evidence against the defendant.    We find no
    basis in the record for disagreeing with the trial court's
    credibility determinations.   Therefore, they are not against the
    manifest weight of the evidence.
    The cases relied on by the defendant are distinguishable.
    In People v. Strickland, 
    129 Ill. 2d 550
    , 
    544 N.E.2d 758
     (1989),
    the police were aware that the defendant was injured when he was
    arrested and did not obtain medical treatment for him until he
    had given a statement.   In the present case, the issue of whether
    12
    No. 1-08-0500
    the officers were aware of the defendant's medical condition was
    resolved against the defendant.
    In In re V.L.T., 
    292 Ill. App. 3d 728
    , 
    686 N.E.2d 49
     (1997),
    the reviewing court found the 10-year-old respondent's confession
    to have been coerced.    The evidence established that the
    respondent, who had no prior experience with police, was taken
    from her home in her pajamas, was tired and hungry, and despite
    her request, no one concerned with her welfare was present for
    her to confer with prior to writing out her confession.      V.L.T.,
    
    292 Ill. App. 3d at 737
    .      The evidence in this case established
    that the defendant was a mature man, who never indicated to
    police that he required food or medical attention or assistance
    of any kind.
    We conclude that the trial court did not err in denying the
    defendant's motion to suppress his inculpatory statement.
    II.   Uncharged Offense
    The defendant contends that his burglary conviction must be
    reversed because he may have been convicted of an uncharged
    offense.   He maintains that the indictment charged him only in
    connection with his own entry into the Hess residence.     He argues
    that by giving the jury an instruction on accountability, the
    13
    No. 1-08-0500
    jury may have convicted him based on evidence that he served as a
    lookout when Cat Daddy entered the Hess residence.    The State
    responds that the trial court correctly found that the two
    entries were part of a continuous course of conduct and that the
    defendant's conduct constituted the singular offense of
    residential burglary.
    A. Pertinent Evidence
    Prior to trial, defense counsel filed a motion in limine to
    bar evidence of other crimes, specifically the reference in the
    defendant's statement that he acted as a lookout while Cat Daddy
    entered the Hess residence and removed certain items from the
    residence.
    Defense counsel argued that, based on the defendant's
    statement, two separate burglaries occurred; one in which the
    defendant acted as a lookout and the other when he actually
    entered the residence.    Based on the indictment and its answer to
    the bill of particulars, defense counsel maintained that the
    State was proceeding only on the burglary in which the defendant
    actually entered the residence.    In response, the prosecutor
    argued that the defendant's actions in acting as a lookout and
    his entry into the Hess residence comprised one continuous crime.
    14
    No. 1-08-0500
    While the exact time of the defendant's actions could not be
    ascertained, the prosecutor noted that, according to the
    defendant's statement, he did not arrive in Blue Island until
    2:30 a.m. on September 17, 2005.     While trial counsel
    acknowledged that both entrances to the Hess residence were on
    September 17, 2005, she pointed out that Mrs. Hess was expected
    to testify that she discovered evidence of the burglary at 2 a.m.
    on September 17, 2005.
    After reviewing the defendant's statement, the trial court
    denied the motion.   Relying on the defendant's statement, the
    court determined that the defendant's actions as a lookout and
    his own entry into the Hess residence constituted a continuous
    course of conduct.   There was no previous burglary and therefore,
    the defendant's statement did not refer to other crimes.
    B. Discussion
    The defendant first challenges the trial court's
    determination that the defendant's participation as a lookout for
    Cat Daddy and his own entry into the Hess residence was a
    continuous course of conduct and constituted the commission of a
    single burglary as charged in the indictment.     The defendant
    relies on People v. Bell, 
    196 Ill. 2d 343
    , 
    751 N.E.2d 1143
    15
    No. 1-08-0500
    (2001).   In Bell, the supreme court held that for purposes of
    eligibility for extended-term sentencing, "[i]f there was a
    substantial change in the nature of the criminal objective, the
    defendant's offenses are part of an 'unrelated course of
    conduct.' "   Bell, 
    196 Ill. 2d at 354-55
    .
    The defendant maintains that the State's evidence showed
    there was a substantial change in the defendant's criminal
    objective between the first and second entries.    The defendant
    asserts that, in the first entry, he served as a lookout while
    Cat Daddy burglarized the Hess residence for the benefit of
    himself and his girlfriend.    When the defendant entered the Hess
    residence, it was to obtain items for himself.    However, the
    evidence also established that when the police searched the
    defendant, he had keys that had been taken from the Hess
    residence.    According to the defendant's statement, after Cat
    Daddy and he returned to Cat Daddy's apartment, the defendant
    took the keys that Cat Daddy had obtained from the Hess residence
    and returned to obtain more items.    After he was surprised by the
    Hesses, the defendant testified that he was trying to return to
    Cat Daddy's apartment when he was tackled by Mr. Hess.
    Based on the evidence and the reasonable inferences from
    16
    No. 1-08-0500
    that evidence, we agree with the trial court that the defendant's
    conduct in acting as a lookout and his own entry into the Hess
    residence constituted a single burglary as charged in the
    indictment.   Assuming, arguendo, the two entries into the Hess
    residence did not constitute a continuous course of conduct, the
    error does not require reversal.
    Citing People v. Crespo, 
    203 Ill. 2d 335
    , 
    788 N.E.2d 1117
    (2001), the defendant argues that it would be unfair to uphold
    his conviction based on either of two burglary theories, one
    which is not legally valid.   In Crespo, while the court rejected
    the State's argument that three separate stab wounds sustained by
    the victim supported three separate offenses, it was because
    "[w]e believe that to apportion the crimes among the various stab
    wounds for the first time on appeal would be profoundly unfair."
    (Emphasis added.)   Crespo, 203 Ill. 2d at 343.   In the present
    case, the State's argument that it was seeking to convict the
    defendant either as an accomplice or a principal was raised at
    trial.
    The defendant then argues that where the jury was instructed
    on alternative theories of guilt and may have relied on an
    invalid one, the guilty verdict may not stand.    See Yates v.
    17
    No. 1-08-0500
    United States, 
    354 U.S. 298
     (1957), overruled on other grounds by
    Burks v. United States, 
    437 U.S. 1
     (1978).    However, our supreme
    court's decision in People v. Davis, 
    233 Ill. 2d 244
    , 
    909 N.E.2d 766
     (2009), suggests otherwise.
    In Davis, our supreme court determined that a harmless-error
    or a plain-error analysis applied to a constitutional due process
    error.    The court noted that in Hedgpeth v. Pulido, 
    555 U.S. 57
    (per curiam), the United States Supreme Court held that where the
    jury was instructed on multiple theories of guilt, one of which
    is improper, a harmless-error analysis is applicable.    Davis, 
    233 Ill. 2d at 270
    , citing Hedgpeth, 555 U.S. at ___, 
    129 S. Ct. at 532
    .    The court further noted that Yates had been decided prior
    to the decision in Chapman v. California, 
    386 U.S. 18
     (1967), in
    which the Court held that constitutional error may be harmless.
    The harmless-error analysis also applies to violations of the
    Illinois Constitution.    See People v. Rivera, 
    227 Ill. 2d 1
    , 30,
    
    879 N.E.2d 876
     (2007) (harmless-error analysis applied to
    violation of the right to a jury trial under the federal
    constitution and applied to a violation of that right alleged
    under the Illinois Constitution).
    Unlike Davis, where the plain-error analysis applied because
    18
    No. 1-08-0500
    the error was not preserved, here the error was preserved for
    review; therefore, the harmless-error analysis applies.       People
    v. Thurow, 
    203 Ill. 2d 352
    , 363, 
    786 N.E.2d 1019
     (2003).      Under
    the harmless-error analysis, the test is whether, absent the
    error, a rational jury could have found the defendant guilty
    beyond a reasonable doubt.   Thurow, 
    203 Ill. 2d at 368-69
    .     The
    State bears the burden of proof.     Thurow, 
    203 Ill. 2d at 363
    .
    Even assuming that a conviction on the accountability theory
    would have been invalid because the defendant was never charged
    in connection with Cat Daddy's entry, there was more than
    sufficient evidence from which the jury could conclude that the
    defendant was guilty of burglary based on his own entry into the
    Hess residence.   The only contested issue was why the defendant
    was present at the Hess residence.     The State's evidence
    established that the defendant was in possession of a set of
    keys, that had been in the Hess kitchen when Mrs. Hess left.
    While the defendant testified that he was given the keys to
    return them for money, his statement was contracted by his own
    statement to police, as well as his statement to Mr. Hess that if
    he did not call the police, the defendant could assist in getting
    the remaining stolen items returned.
    19
    No. 1-08-0500
    We conclude that any error in allowing the jury to consider
    an accountability theory in convicting the defendant was harmless
    beyond a reasonable doubt.
    III. Admission of Certified Copy of Previous Conviction
    The defendant contends that the trial court erred by
    admitting the certified copy of the defendant's conviction
    without deleting the references to the sentence he received,
    that he caused injury and great bodily harm and the nine counts
    the defendant was charged with, not just the seven of which he
    was convicted.   He acknowledges that he failed to preserve the
    error but seeks review under the plain-error doctrine.   See Ill.
    S. Ct. R. 615(a).   Under the plain-error doctrine, we may
    consider a forfeited issue "when either (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, 
    830 N.E.2d 467
     (2005).
    The defendant asserts that we should review the alleged error
    because the evidence is closely balanced. First, we must
    determine if error occurred.   People v. Hudson, 
    228 Ill. 2d 181
    ,
    191, 
    886 N.E.2d 964
     (2008).
    To impeach a defendant with a prior conviction, the proper
    20
    No. 1-08-0500
    method of proof is the introduction of a certified copy of the
    record of conviction only.    People v. Davis, 
    54 Ill. App. 3d 517
    ,
    525, 
    369 N.E.2d 1376
     (1977).    The inclusion of irrelevant
    evidence such as the inclusion of criminal charges of which the
    defendant was not convicted was surplusage, irrelevant and
    erroneous.   Davis, 
    54 Ill. App. 3d at 525
    .   It is also improper
    to indicate the sentence the defendant received for a prior
    conviction, as it is immaterial to the question of a defendant's
    credibility.    People v. Pruitt, 
    165 Ill. App. 3d 947
    , 954, 
    520 N.E.2d 867
     (1988).    The details appearing on the documents
    necessary to prove the defendant's prior conviction may be so
    prejudicial that the defendant would be entitled to a new trial.
    See People v. Dudley, 
    217 Ill. App. 3d 230
    , 234, 
    576 N.E.2d 1110
    (1991).   Assuming, arguendo, that the admission of the surplusage
    information was error, we must address the defendant's argument
    that the evidence is closely balanced.
    In People v. Naylor, 
    229 Ill. 2d 584
    , 
    893 N.E.2d 653
     (2008),
    the supreme court determined that the trial court erred when it
    admitted the defendant's prior conviction.    In conducting a
    plain-error analysis, the court further determined that the
    evidence was closely balanced where the trial court was faced
    21
    No. 1-08-0500
    with two credible versions of the event.    As the State's only
    successful attack on the defendant's testimony was his
    erroneously admitted prior conviction and the court could not be
    certain the error did not prejudice the defendant's right to a
    fair trial, the error was not forfeited and required that the
    defendant receive a new trial.    Naylor, 
    229 Ill. 2d at 608-09
    .
    The defendant's reliance on Naylor is misplaced.    Unlike the
    trial judge in Naylor, in the present case, the jury was not
    faced with two equally credible versions of the events.     The
    testimony of the Hesses established that the defendant entered
    their residence and that the defendant had in his possession a
    set of keys, which had been in the residence at the time Mrs.
    Hess left.   The defendant attempted to flee and was restrained by
    Mr. Hess.    The defendant then offered to help Mr. Hess retrieve
    his possessions.    The defendant's testimony denying his
    participation in the burglary was contradicted by his statement
    admitting his participation in the burglary of the Hess residence
    and his possession of the keys taken from the residence.
    The evidence is not closely balanced in this case, and the
    defendant does not argue the second prong of the plain-error
    analysis.    Therefore, we conclude that there is no basis for
    22
    No. 1-08-0500
    excusing the defendant's procedural default.
    IV. Hearsay
    The defendant contends that the trial court erred when it
    barred a portion of the defendant's testimony on the basis that
    it was hearsay and that the error prevented him from establishing
    his defense.    The State responds that the testimony was hearsay
    and that any error was harmless and did not deprive the defendant
    of his defense.
    A. Pertinent Evidence
    On direct examination, the defendant testified that Cat
    Daddy passed him a set of keys from Cat Daddy's brother.        The
    defendant was then questioned as follows:
    "Q. After you had that conversation about these keys,
    did you do anything?
    A. Meaning?
    Q. What did you do after you had this conversation
    about the keys that you were given?
    A. I went down the street.       I followed their
    direction."
    The prosecutor's objection was sustained, and the answer was
    stricken.    The questioning then continued as follows:
    23
    No. 1-08-0500
    "Q. Just tell me what you did.    Where did you go?
    A. I walked down the street on the same side of the
    street we all were on until I saw the house on the opposite
    side of the street like they told me."
    Again, the prosecutor's objection was sustained.     The trial
    court instructed the defendant to answer the question without
    telling what someone told him to do.    The defendant indicated
    that he understood the court's instruction.     The questioning
    continued as follows:
    "Q. All right.   You said you walked to a house.     How
    did you know which house to walk to?
    A. I was given instructions."
    Outside the presence of the jury, defense counsel argued
    that the testimony was not hearsay in that it was not offered for
    the truth of the matter asserted but to explain why the defendant
    went to a particular house.   The trial court disagreed, finding
    that the testimony was offered to prove that the defendant was
    told by someone to go that house.     Later, the trial court
    allowed the defendant to testify that he was going to the Hess
    residence to get $20.
    B. Standard of Review
    24
    No. 1-08-0500
    A trial court's decision on the relevance and admissibility
    of evidence is reviewed for an abuse of discretion.     People v.
    Gonzalez, 
    379 Ill. App. 3d 941
    , 953, 
    884 N.E.2d 228
     (2008).
    C. Discussion
    In order to constitute hearsay, the statement must be
    offered to establish the truth of the matter asserted in the
    statement.    Gonzalez, 379 Ill. App. 3d at 954.   "The primary
    rationale for the exclusion of hearsay testimony is the inability
    of the opposition to test the testimony's reliability through
    cross-examination of the out-of-court declarant."     People v.
    Weatherspoon, 
    394 Ill. App. 3d 839
    , 850, 
    915 N.E.2d 761
     (2009).
    Where the out-of-court statement is offered to prove its effect
    on the listener's mind or to show why the listener subsequently
    acted as he did, the statement does not constitute hearsay and is
    admissible.    Gonzalez, 
    379 Ill. App. 3d 941
    .
    The defendant maintains that the excluded testimony was not
    hearsay because his testimony as to Cat Daddy's instructions was
    offered to explain that he went to the Hess residence to return a
    set of car keys.    In People v. Sorrels, 
    389 Ill. App. 3d 547
    , 
    906 N.E.2d 788
     (2009), the reviewing court held that a police
    officer's order to the defendant to "stop," was not hearsay as it
    25
    No. 1-08-0500
    was admitted to establish that the defendant ignored the
    officer's command and continued to flee.   In addition, the court
    found that the statement was properly admitted because there was
    "'no truth of the matter asserted'" in the command to "stop" and
    that it was not necessary "'to test the reliability through
    cross-examination of the out-of-court declarant' because that
    testimony has no 'reliability' in the hearsay sense."   All that
    mattered was that the word was uttered.    Sorrels, 389 Ill. App.
    3d at 553.
    Likewise, in this case, the defendant's statement that he
    was instructed to go to the Hess residence did not constitute
    hearsay because it was offered to show why the defendant acted as
    he did, namely to go to the Hess residence.   Like the "stop"
    command in Sorrels, the instruction to go to the Hess residence
    did not constitute "'an assertion or a statement of fact.'" See
    Sorrels, 389 Ill. App. 3d at 554 (quoting Holland v. State, 
    713 A.2d 364
    , 369-70 (Md. Ct. Spec. App. 1998).
    "Erroneous exclusion of admissible evidence does not mandate
    reversal unless defendant was prejudiced and the error affected
    the verdict."   Weatherspoon, 394 Ill. App. 3d at 850-51.   In
    Weatherspoon, the trial court erroneously excluded on the grounds
    26
    No. 1-08-0500
    of hearsay the defendant's testimony that during a conversation
    with a group of men, he felt threatened.   The defendant argued
    that the exclusion of the testimony prevented him from explaining
    why he left the jurisdiction.   The reviewing court held that the
    error was harmless where, from the defendant's testimony, the
    jury could discern that the conversation was so disturbing as to
    cause the defendant to immediately leave Chicago.    The court
    concluded that, considering all of the evidence and arguments,
    the jury was sufficiently aware of an explanation for his flight
    compatible with the defendant's innocence.   Weatherspoon, 394
    Ill. App. 3d at 851-52.
    In the present case, the defendant testified that he did not
    go to the Hess residence on his own, that he had a conversation
    with Cat Daddy or Cat Daddy's brother about the keys and that he
    was going to the Hess residence to make an exchange for $20.     On
    cross-examination, the defendant was questioned as follows;
    "Q. Now, you indicated that you do remember that
    approximately sometime between 1:30 and 1:45 [a.m.], Cat
    Daddy's brother gives Cat Daddy some keys and Cat Daddy
    gives the keys to you, is that what happened?
    A. Yes, ma'am.
    27
    No. 1-08-0500
    Q. Were you now wearing a watch?
    A. No, ma'am.
    Q. How did you know the time this time?
    A. Because it was late.   I had not too much more time
    before they told me the bus quit running.   When he gave me
    the keys, he said go on do that so you can go on and get out
    of here.
    Q. Okay.
    So he gave you the keys and then you walked to 12316
    Vincennes, that's your testimony, right?
    A. Yes, ma'am."
    The admitted testimony was sufficient to acquaint the jury
    with an explanation for the defendant's presence at the Hess
    residence compatible with the defendant's innocence.   See
    Weatherspoon, 394 Ill. App. 3d at 853.   Therefore, the exclusion
    of the testimony did not prejudice the defendant, and given the
    overwhelming evidence against the defendant, the outcome of the
    trial would not have been different had the omitted testimony
    been allowed.
    V. Prosecutor's Rebuttal Argument
    The defendant contends that the prosecutor's improper
    28
    No. 1-08-0500
    remarks during her rebuttal argument require that the defendant
    receive a new trial.
    A. Standard of Review
    Our appellate courts are divided on the standard of review
    for closing remarks.    People v. Maldonado, 
    402 Ill. App. 3d 411
    ,
    421, 
    930 N.E.2d 1104
     (2010).    The division stems from an apparent
    conflict between two supreme court cases.    In People v. Wheeler,
    
    226 Ill. 2d 92
    , 121, 
    871 N.E.2d 728
     (2007), the supreme court
    held that whether a prosecutor's remarks are so egregious as to
    require a new trial presents a question of law to which the de
    novo standard of review is applicable.    However, in Wheeler, the
    court also cited with approval People v. Blue, 
    189 Ill. 2d 99
    ,
    
    724 N.E.2d 920
     (2000).    In Blue, the court applied the abuse of
    discretion standard to its review of the prosecutor's remarks.
    Within this district, there is a division as to the
    applicable standard of review.    See People v. Raymond, 
    404 Ill. App. 3d 1028
    , 1038 (2010).    While noting the conflict, this
    division has declined to determine the appropriate standard,
    where the result would be the same regardless of which standard
    was applied.    See Maldonado, 402 Ill. App. 3d at 422.   As we
    would reach the same approach under either standard, we will
    29
    No. 1-08-0500
    refrain from articulating the applicable standard until our
    supreme court resolves the conflict.
    B. Discussion
    1. Forfeiture
    In order to preserve an issue for appeal, the defendant must
    object at trial and raise the issue in a posttrial motion.
    People v. Johnson, 
    385 Ill. App. 3d 585
    , 604, 
    898 N.E.2d 658
    (2008).   In his posttrial motion, the defendant raised only one
    remark by the prosecutor as error: that the defendant had two
    years to fabricate his defense.    However, as the State points
    out, the defendant did not object to this remark at trial but
    rather to the prosecutor's reference to what the defendant "knew"
    two years before.   As the prosecutor's remarks were either not
    objected to at trial or not raised in the defendant's posttrial
    motion, the defendant has forfeited any error based on the
    prosecutor's closing argument.
    2. Plain Error
    In his reply brief, the defendant requests that we review
    this issue for plain error.   Ordinarily a litigant may not raise
    issues for the first time in a reply brief.    Ill. S. Ct. R.
    30
    No. 1-08-0500
    341(h)(7) (eff. Mar.16, 2007).    However, this court has
    recognized that a reviewing court is not precluded from reviewing
    a defendant's plain-error argument even when it was raised for
    the first time in a reply brief.      People v. Johnson, No. 1-07-
    3372, slip op. at 5-6 (Ill. App. Dec. 10, 2010) (citing People v.
    Williams, 
    193 Ill. 2d 306
    , 347-48, 
    739 N.E.2d 455
     (2000)).
    The defendant contends that we may consider the forfeited
    error in this case because the evidence is closely balanced.      We
    must first determine if error occurred.      Hudson, 
    228 Ill. 2d at 191
    .
    In reviewing a defendant's claims of prosecutorial
    misconduct in closing argument, the court considers the closing
    argument in its entirety in order to place the complained of
    remarks in context. Johnson, 
    385 Ill. App. 3d at 604
    .      "If the
    jury could have reached a contrary verdict had the improper
    remarks not been made, or the reviewing court cannot say that the
    prosecutor's improper remarks did not contribute to the
    defendant's conviction, a new trial should be granted."      Wheeler,
    
    226 Ill. 2d at 123
    .
    The defendant complains that the prosecutor accused the
    defendant of fabricating his defense, misstated the defendant's
    31
    No. 1-08-0500
    testimony when he argued that the defendant had referred to Mrs.
    Hess as a "crackhead," improperly shifted the burden of proof by
    arguing that there was no evidence that Mrs. Hess ever purchased
    drugs, inflamed the passions of the jury by accusing the
    defendant of using his status as a diabetic to excuse his
    behavior, and bolstered his case improperly by telling the jury
    police officers were more credible than the defendant based on
    their status as police officers.     Finally, the defendant argued
    that the cumulative effect of these improper remarks required
    that the defendant receive a new trial.
    Prosecutors are afforded wide latitude in closing argument.
    Wheeler, 
    226 Ill. 2d at 123
    .   A prosecutor has the right to
    comment upon the evidence presented and upon reasonable
    inferences arising from that evidence, even if the inferences are
    unfavorable to the defendant, and may respond to comments made by
    defense counsel which clearly invite a response.    People v.
    Hudson, 
    157 Ill. 2d 401
    , 441, 
    626 N.E.2d 161
     (1993).
    Nonetheless, " 'it is improper for the prosecutor to do or say
    anything in argument the only effect of which will be to inflame
    the passion or arouse the prejudice of the jury against the
    defendant, without throwing any light on the question for
    32
    No. 1-08-0500
    decision.' "    People v. Fluker, 
    318 Ill. App. 3d 193
    , 202, 
    742 N.E.2d 799
     (2000) (quoting People v. Smith, 
    141 Ill. 2d 40
    , 60,
    
    565 N.E.2d 900
     (1990)).
    The prosecutor's statement that the defendant wanted the
    jury to believe that Mrs. Hess was a "crackhead" was in response
    to defense counsel's argument that Mrs. Hess's statement to Mr.
    Hess that "he's back" was based on the fact she had seen the
    defendant while she was purchasing drugs.    The prosecutor's
    statement that there was no evidence that Mrs. Hess ever bought
    drugs did not amount to shifting the burden of proof to the
    defendant but was a proper attack on the theory of defense.      See
    People v. Berry, 
    264 Ill. App. 3d 773
    , 780, 
    642 N.E.2d 1307
    (1994).
    The defendant asserts that the prosecutor repeatedly and
    improperly argued that the defendant fabricated his defense.     In
    People v. Slabaugh, 
    323 Ill. App. 3d 723
    , 
    753 N.E.2d 1170
     (2001),
    the reviewing court found the prosecutor's rebuttal argument
    improper where he repeatedly argued that the defense witnesses
    were lying and had gotten together to create a defense.    The
    court determined that the testimony of the defendant and a
    witness, who were friends, that they had a discussion about what
    33
    No. 1-08-0500
    would happen at the trial some two years before did not support
    the inference that they had manufactured a defense.   Slabaugh,
    
    323 Ill. App. 3d at 729-30
    .
    The defendant's reliance on Slabaugh is misplaced.    In the
    present case, the prosecutor's argument was based on the
    differing versions of the burglary contained in the defendant's
    statement and in his testimony at trial.   See People v. Frieberg,
    
    147 Ill. 2d 326
    , 356, 
    589 N.E.2d 508
     (1992) (proper for
    prosecutor to cross-examine the defendant on the inconsistencies
    between his statement to police and his in-court testimony).
    Therefore, it was a reasonable inference from the evidence that
    the defendant had tailored his defense to fit the facts.
    We find the prosecutor's reference to the defendant's use of
    his diabetic condition as an excuse for his confession to be a
    reasonable inference from the evidence.    The defendant testified
    that he was an insulin-dependent diabetic and that he took
    insulin twice a day.   He further testified that his confession
    was the result of being deprived of insulin.   When confronted by
    the prosecutor, the defendant acknowledged he did not take his
    insulin the night of September 16, 2005, explaining that he did
    not feel like he needed the insulin because he had consumed
    34
    No. 1-08-0500
    enough food that evening.    Yet, by the time of his September 17,
    2005, statement to police, he had twice missed taking insulin.
    In that statement, the defendant maintained that he had been well
    treated by police.    In light of the defendant's varying testimony
    as to his dependance on insulin, the prosecutor's comment was not
    intended to inflame the passions of the jury and was a proper
    comment on the evidence.
    Finally, the defendant contends that the prosecutor
    improperly bolstered the testimony of the police witnesses.
    Defense counsel had argued to the jury that Officer Rzab could
    not afford to change her account of the defendant's interview in
    her trial testimony and how convenient it was that the statement
    was not videotaped.   In rebuttal, the prosecutor argued that the
    detectives would not have ignored the defendant's requests for
    insulin, given the potential liability if the defendant passed
    out or died as a result.    The defendant relies on People v.
    Fields, 
    258 Ill. App. 3d 912
    , 921, 
    631 N.E.2d 303
     (1994), and
    People v. Clark, 
    186 Ill. App. 3d 109
    , 
    542 N.E.2d 138
     (1989).    In
    both cases, the reviewing courts found the prosecutors' arguments
    that the police witnesses would not risk their pensions by
    committing perjury to be improper argument.
    35
    No. 1-08-0500
    In People v. Gorosteata, 
    374 Ill. App. 3d 203
    , 
    870 N.E.2d 936
     (2007), this court explained that the "invited response"
    doctrine applies where the prosecutor is responding to improper
    argument on the part of defendant's counsel.    Gorosteata, 374
    Ill. App. 3d at 222.   " 'The credibility of a witness is a proper
    subject for closing argument if it is based on the evidence or
    the inferences drawn from it.' "     Gorosteata, 374 Ill. App. 3d at
    223 (quoting Hudson, 
    157 Ill. 2d at 445
    ).    As trial counsel's
    argument was not improper, the prosecutor's reference on rebuttal
    to why the jury should believe the police officers cannot be
    justified under the invited response doctrine.    As such, the
    prosecutor's argument was improper.
    Even if reversible, this error does not require that the
    defendant receive a new trial in this case.    See Gorosteata, 374
    Ill. App. 3d at 225 (not all reversible errors are plain errors).
    As we previously determined, the evidence against the defendant
    was overwhelming; therefore, the defendant has failed to satisfy
    the first prong of the plain-error analysis.    As the defendant
    does not argue the second prong of the plain error analysis, we
    conclude that there is no basis for excusing the defendant's
    procedural default.
    36
    No. 1-08-0500
    VI. Voir Dire
    The defendant contends that the trial court erred when it
    refused to allow defense counsel to question the venire to
    determine if they could be fair and impartial, knowing that the
    defendant had a prior conviction.
    A. Pertinent Evidence
    Initially, the trial court allowed defense counsel to
    question the venire as to the defendant's prior convictions as
    follows:
    "MS. MALONE-LOCKETT (defense counsel): Mr. McNicholas,
    if you learned that a witness or a defendant had a
    conviction in his background, would that impair your ability
    to be fair and impartial?
    MR. McNICHOLAS: For repeated offense?
    MS. MALONE-LOCKETT: At all.
    MR. McNICHOLAS: Or just whether [sic] general?
    MS. MALONE-LOCKETT: At all.
    MR. McNICHOLAS: I guess it depends on [the] nature of
    it.
    MS. MALONE-LOCKETT: What do you mean by that?
    MR. McNICHOLAS: Well, I mean again if it is [a]
    37
    No. 1-08-0500
    similar event and there was [a] conviction I guess I would
    have to look at - [.]"
    The trial court recessed the proceedings and in chambers
    heard argument from both parties on the merits of the defendant's
    request.    The court then ruled as follows:
    "I am not going to allow the question.      It seems loaded with
    other issues that it will lead to.      What is [the] conviction
    for.   That's what the jury instruction is for.
    I asked all of them it they will follow the law.
    Follow the jury instruction.      There will be no question
    pertaining if the defendant or witness had a prior
    conviction.   And I guess your next question would be would
    it affect your ability to be a juror in this case.
    That's not a proper question for the venire."
    B. Standard of Review
    We review an issue as to compliance with a supreme court
    rule de novo.    People v. Lloyd, 
    338 Ill. App. 3d 379
    , 384, 
    788 N.E.2d 1169
     (2003).    However, a trial court's denial of a party's
    request to question jurors on a particular viewpoint is reviewed
    for an abuse of discretion.    People v. Reeves, 
    385 Ill. App. 3d 716
    , 729-30, 897 N.E.2d (2008).
    38
    No. 1-08-0500
    C. Discussion
    1. Forfeiture
    The defendant concedes that the error was not raised in his
    posttrial motion.   He argues that the error was sufficiently
    preserved in the record by his objection at trial and may be
    reviewed under the constitutional or plain error exceptions
    recognized in People v. Enoch, 
    122 Ill. 2d 176
    , 190, 
    122 N.E.2d 1124
     (1988) (where a defendant failed to file a posttrial motion,
    review was limited to constitutional issues properly raised at
    trial, sufficiency of the evidence and plain error).
    The constitutional exception does not apply in this case
    because the authority to question prospective jurors derives from
    the supreme court's inherent power to make rules governing the
    conduct of the circuit courts.   See People v. Glasper, 
    234 Ill. 2d 173
    , 196, 
    917 N.E.2d 401
     (2009) (defendants do not have a
    right to Illinois Supreme Court Rule 431(b)(4) (eff. May 1, 2007)
    questioning under either the United States or Illinois
    Constitution).   Therefore, we will apply the plain-error analysis
    and determine, first, if error occurred.
    2. Plain Error
    Initially, we note that the trial judge did not deny defense
    39
    No. 1-08-0500
    counsel the opportunity to question the jurors directly.    It
    allowed the questioning until it appeared defense counsel's
    questions were intruding into the area of jury instructions, thus
    violating Rule 431(a).   We must determine if the trial court
    abused its discretion by not allowing defense counsel to question
    the venire as to the effect the defendant's prior conviction
    would have on their ability to be fair and impartial.    Rule
    431(a) provides as follows:
    "The court shall conduct voir dire examination of
    prospective jurors by putting to them questions it thinks
    appropriate, touching upon their qualifications to serve as
    jurors in the case at trial.    The court may permit the
    parties to submit additional questions to it for further
    inquiry if it thinks they are appropriate and shall permit
    the parties to supplement the examination by such direct
    inquiry as the court deems proper for a reasonable period of
    time depending upon the length of examination by the court,
    the complexity of the case, and the nature of the charges.
    Questions shall not directly or indirectly concern matters
    of law or instructions."   Ill. S. Ct. R. 431(a) (eff. May 1,
    2007)).
    40
    No. 1-08-0500
    We find no error in the refusal of the trial court to
    question prospective jurors as to whether a witness or a
    defendant's prior conviction would affect their ability to be
    fair and impartial.   Such an inquiry violated Rule 431(a)
    prohibition against questions covered by the instructions.
    Illinois Pattern Jury Instructions, Criminal, No. 3.13 (4th ed.
    2000) (hereinafter, IPI Criminal 4th No. 3.13) provides that
    jurors may consider evidence of a defendant's prior conviction
    only as it affects his credibility as a witness and not as
    evidence of guilt.
    The defendant argues that defense counsel's question
    concerned not only the defendant's credibility but that of the
    witnesses as well.    IPI Criminal 4th No. 1.02 sets forth what the
    jurors may take into account in their role as the sole judges of
    the believability of the witnesses.    Since the defendant's
    inquiry of the prospective jurors directly or at the very least,
    indirectly, concerned the instructions to be given to the jury,
    it was prohibited by Rule 431(a).
    Our conclusion finds support in People v. Brandon, 
    157 Ill. App. 3d 835
    , 
    510 N.E.2d 1005
     (1987).    On appeal, the defendant
    argued that the trial court erred in refusing to question
    41
    No. 1-08-0500
    potential jurors if they would be prejudiced against the
    defendant if they learned he had a felony conviction.     The
    defendant maintained that his question did not pertain to matters
    of law, but was proper in order to uncover bias.
    The reviewing court found the tendered question improper
    because the subject was covered in IPI Criminal 2d No. 3.13 and
    because it would have tended to unfairly tip the balance in favor
    of the defendant's case.   The court reasoned that, as the
    defendant claimed that the case was a battle of credibility
    between the defendant and the arresting officer, the tendered
    question would have improperly highlighted an aspect of the
    defense claim rather than a legitimate attempt to expose bias or
    prejudice.   In addition, at the voir dire stage of the
    proceedings, the trial court could not have anticipated whether
    the defendant would testify and, if so, whether the State would
    impeach him with his prior convictions.    Brandon, 
    157 Ill. App. 3d at 844
    .
    In this case, the defendant argues that the question did not
    relate to the theory of his case.    We disagree.   As was the case
    in Brandon, the trial here presented a credibility contest
    between the defendant's version of why he was present in the Hess
    42
    No. 1-08-0500
    residence and the version presented by the State's witnesses.
    The defendant's reliance on People v. Strain, 
    194 Ill. 2d 467
    , 
    742 N.E.2d 315
     (2000), and People v. Lanter, 
    230 Ill. App. 3d 72
    , 
    595 N.E.2d 210
     (1992), is misplaced.   In People v. Dixon,
    
    382 Ill. App. 3d 233
    , 
    887 N.E.2d 577
     (2008), this court
    reiterated its holding that Strain was limited to cases involving
    evidence relating to gangs and gang membership and refused to
    extend Strain to other areas of potential bias.    Dixon, 382 Ill.
    App. 3d at 245.   The court in Dixon also distinguished Lanter on
    the basis that the defendant in Lanter asserted the affirmative
    defense of intoxication and that no affirmative defense was
    asserted in the case before it.    The court also noted the court's
    observation in Lanter, that " '[n]ot every affirmative defense is
    so controversial as to render voir dire questioning appropriate.'
    "   Dixon, 382 Ill. App. 3d at 244 (quoting Lanter, 
    230 Ill. App. 3d at 76
    ).
    This case does not involve gang-related evidence or an
    affirmative defense.   The defendant also relies on People v.
    Stack, 
    112 Ill. 2d 301
    , 
    493 N.E.2d 339
     (1986).    However, in
    Brandon, the reviewing court found Stack inapplicable because the
    question relating to the defendant's prior convictions did not go
    43
    No. 1-08-0500
    to a basic or fundamental matter directly involving the
    defendant's guilt or responsibility, such as the defense of
    insanity raised in Stack.    Brandon, 
    157 Ill. App. 3d at 843
    .
    Likewise, Stack does not support the defendant's argument that
    the question relating to the defendant's prior convictions was
    proper.
    We conclude that the trial court did not abuse its
    discretion when it refused to allow defense counsel to question
    the venire as to the affect prior convictions would have on their
    ability to be fair and impartial.      As there was no error, we need
    not engage in the plain-error analysis.
    VII. Cumulative Error
    The defendant contends that the cumulative effect of the
    alleged errors requires that he receive a new trial.     Based on
    our resolution of the defendant's claims of error in this case,
    we find no merit to the defendant's contention.
    CONCLUSION
    The defendant's conviction and sentence are affirmed.
    Affirmed.
    44
    No. 1-08-0500
    45