People v. Perez , 2023 IL App (1st) 201331-U ( 2023 )

2023 IL App (1st) 201331-UNo. 1-20-1331
Order filed June 22, 2023
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 11319
)
ENRIQUE PEREZ, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge, presiding.
JUSTICE ROCHFORD delivered the judgment of the court.
Presiding Justice Lampkin and Justice Martin concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s conviction for violating the Sex Offender Registration Act
where the evidence presented was sufficient to sustain his conviction. Defendant
forfeited his claim that the trial court denied him due process by considering matters
outside the trial evidence. The claimed error was not plain error.
¶2 Following a 2019 bench trial, Enrique Perez was convicted of violating the Sex Offender
Registration Act (Act) (730 ILCS 150/1 et seq. (West 2018)) and sentenced to two years’
imprisonment. On appeal, defendant contends that the trial evidence was insufficient to convict
No. 1-20-1331
him beyond a reasonable doubt. He also contends that the trial court deprived him of due process
when it told him during trial to provide evidence of current registration and admitted that his failure
to do so was a factor in its finding of guilt. For the reasons stated below, we affirm. 1
¶3 Defendant was charged with violating section 3(a) of the Act by, between April 28, 2017,
and July 19, 2018, knowingly failing to register in person with the Chicago police within three
days of “establishing a residence or temporary domicile” in Chicago, Cook County, when he had
a prior military conviction for aggravated sexual assault. 730 ILCS 150/3(a)(1), (b) (West 2018).
¶4 Defendant was arrested on July 19, 2018, and released on bond the next day.
¶5 At the November 2019 trial, the State offered into evidence a certified copy of defendant’s
military conviction. Specifically, the Army Court of Criminal Appeals certified that defendant was
convicted upon a 2011 guilty plea of various offenses, for which he was sentenced to demotion,
forfeiture of pay, confinement for five years and three months, and dishonorable discharge. One
of the charges to which defendant pled guilty was engaging in sexual acts with a “substantially
incapacitated” woman; specifically, penetrating her vulva with his penis and touching her breasts.
Another charge to which he pled guilty was committing sodomy with the same woman “by force
and without [her] consent.”
¶6 Harry Miller of the federal Bureau of Prisons (Bureau) testified that defendant was a federal
prison inmate in December 2016 when Miller and two other Bureau employees spoke with him
about his release plan. A release plan includes discussing an inmate’s obligations following
release, and defendant was told about his obligation to participate in sex offender registration.
Defendant was asked for the address where he would live following release, but defendant would
1
This matter was recently assigned to Justice Rochford’s docket.
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not provide one. Defendant also would not sign the release plan acknowledging that he was
informed of his obligations. Miller recognized and identified a copy of defendant’s release plan.
¶7 A second meeting was held with defendant in January 2017, after his release date changed,
to again discuss his release plan. While Miller did not attend this meeting, defendant’s release plan
was included in his Bureau file in the course of Bureau business, and Miller read it and was familiar
with it. The January 2017 release plan indicated that defendant was advised of his registration
obligations and did not provide a post-release address. While an inmate was usually provided a list
of where he or she would have to register, defendant could not be provided such a list because he
did not provide a post-release address.
¶8 Miller participated in defendant’s final program review ahead of his release, in which
inmates are reminded of their registration obligations, and Miller testified that the program review
documents are also kept by the Bureau in the course of its business. Defendant did not sign
acknowledgements that he was advised of his registration obligations or that he was provided a
list of sex offender treatment programs.
¶9 On cross-examination, Miller acknowledged that he did not attend every inmate’s release
plan meeting, but he would review the plan before signing it if he did not attend. No recording or
notes were made of meetings beyond the plan documents. Another Bureau employee told
defendant of his registration obligations in the December 2016 meeting, but Miller was present for
the entire meeting and “backed her up. *** I told him the reason why he should sign it; and we
tried to get a release address from him.” The Bureau did not have a release address for defendant
“[b]ecause he wouldn’t tell us.” The December 2016 plan indicated that defendant would be
homeless. Miller did not attend the January 2017 meeting, but he knew defendant was advised of
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his registration obligations because the employee who did so told Miller and Miller reviewed the
plan documents.
¶ 10 The court admitted into evidence, as business records, the Bureau documents referenced in
Miller’s testimony. Two Bureau documents, from December 2016 and January 2017, both state
that defendant “has been advised by staff of the conditions of his supervision, to include registering
as a sex offender. He will not provide staff with an actual release residence.” He was also advised
to report to federal probation authorities after his April 2017 release, “[h]owever, he advises staff
he will not report.” A March 2017 Bureau document recites “You are subject to registration as a
sex offender in any state in which you reside, are employed, carry on a vocation, or are a student.”
All three documents have a place for defendant to sign, which have been filled in with “refused to
sign” or “refuses to sign.”
¶ 11 Enrique Perez Gonzalez (Gonzalez) 2 testified that he lived on the 1600 block of West 16th
Street (the 16th Street home) with his wife. He identified defendant as his son. After unsuccessfully
invoking the right against self-incrimination, Gonzalez admitted that defendant was living “[i]n
my home,” specifically the 16th Street home, after his release from prison. Defendant was living
in Gonzalez’s home when he was arrested.
¶ 12 On cross-examination, Gonzalez could not recall when defendant was released from prison.
Gonzalez’s home had two bedrooms, one for Gonzalez and his wife and the other for defendant.
Gonzalez was asked if he knew whether defendant actually slept in his bedroom, since Gonzalez
would be sleeping in another bedroom. Gonzalez replied that defendant “has his bedroom.”
2
Throughout the record on appeal, the witness is also referred to as Enrique Perez, Sr. We use the
name by which he identified himself at trial, Enrique Perez Gonzalez.
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Defendant did not own the 16th Street home or pay any of the utility bills. When asked if he “spent
24 hours a day with [defendant], since he was released from prison,” Gonzalez replied “More of
the time, not all of it. More of the time, I spent with him.”
¶ 13 Sergeant Edmund Echevarria of the Chicago Police Department testified that he was the
commander of the criminal registration unit, the sole location in Chicago for registering under the
Act. Echevarria explained the registration process, including paper cards, logs, and files of
registration information kept by his unit and various information systems into which registration
information is input. Pursuant to a subpoena, Echevarria’s unit searched the records for defendant
but found no registration file or paperwork by someone bearing defendant’s name and birthdate.
Based on that absence and to the best of Echevarria’s knowledge, defendant must not have come
to his unit to register.
¶ 14 Echevarria explained that, had defendant come to register but his effort was incomplete or
unsuccessful, a document would nonetheless have been generated, but none was found. Similarly,
the unit’s logs from April 28, 2017, to July 20, 2018, reflected all persons who registered or
attempted to register during that period. Echevarria identified those logs at trial. He testified that
they are kept in the normal course of his unit’s business, and he had reviewed them before trial.
The trial court admitted into evidence the logs kept by Echevarria’s unit from April 28, 2017, to
July 20, 2018.
¶ 15 On cross-examination, Echevarria testified that his unit sometimes receives notice that a
sex offender is being released and plans to come to Chicago. It rarely receives such notice from
the Bureau, and Echevarria did not recall receiving such notice for defendant.
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¶ 16 Belkis Sandoval, a deputy United States marshal, testified that she was assigned to look for
a noncompliant sex offender on July 19, 2018. She had defendant’s name and date of birth, and a
copy of a driver’s license bearing his name, photograph, and home address as the 16th Street home
in Chicago. She went to the 16th Street home in Chicago and was admitted by a woman. There,
Sandoval found defendant and Gonzalez. As the woman helped defendant gather clothes, Sandoval
spoke with Gonzalez. Defendant then was arrested. On cross-examination, Sandoval testified that
defendant did not try to resist or flee and made no statements to her. Sandoval could not recall
when the driver’s license was issued.
¶ 17 The court admitted into evidence certified copies of defendant’s driving record and state
identification card. Two April 2019 certified documents from the Illinois Secretary of State
(Secretary) reflect that Enrique Perez was issued an identification card and a driver’s license in
2015, both listing his address as the 16th Street home. The license was renewed in August 2018
with no change of address, and the Secretary expressly certified that defendant’s license was valid
on April 28, 2017.
¶ 18 Defense counsel made a motion for a directed finding, which the court denied. Defendant
exercised his right to not testify, and the defense rested.
¶ 19 The court then noted that the State must prove not only failure to register but mental state,
and the court said it would “defer” the case. It told defense counsel:
“if you are able to come back and show me that your client has registered, as some of the
evidence appears he may have been required to, and even if it’s late, I think that would be
an important fact that I would be willing to consider and incorporate into the [t]rial record
here, involving his mental state.
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¶ 20 The court told defendant:
“I’m urging you to, *** if you show me you’re registered, I think this would have
some impact in where this [t]rial goes, and what happens with this [t]rial, and what may
happen beyond the [t]rial.
And I’m asking you to strongly consider not putting anybody in a position where,
you’re going to complicate something *** that’s already complicated.
You don’t have to complicate it more. It’s a criminal case. You’re looking at a
possible jail sentence of up to 5 years.
But I want to have all the information in front of me; and if I were to know that you
have registered before this [t]rial is completed, that would be something that I would
consider; and *** it would matter.
So, how many weeks would you like?
It doesn’t have to be long. I’m hoping that we can resolve this. I’m trying to find a
way to simplify this, and simplify everybody’s life as opposed to complicating it.
I understand you may have some resentments.”
¶ 21 Defendant interjected “I don't follow your Honor.” The court continued: “You need to
show me that you’re registered, *** and I think that would go a long way towards *** easing this
situation, and helping everybody get through it, and let everyone get on with their lives.” Defense
counsel did not object, and trial was continued for about two weeks.
¶ 22 Following the continuance, the court heard closing arguments. During the defense
argument, the court asked whether defendant registered with the “federal government”; defense
counsel answered “No” without objecting. The court then noted that defendant was out on bond
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since his 2018 arrest and asked, “he’s still not registering?” Counsel replied, without objection,
“[h]e is still not registered.” Counsel then completed her argument, including that “[t]he issue at
hand is this specific charge and the specific elements in this [t]rial, not what [defendant] may or
may not do in the future; and I believe that the State did not meet their burden of proof beyond a
reasonable doubt.”
¶ 23 The court found defendant guilty, expressly finding the State’s witnesses credible. The
court noted, based on “a strong sense from the witnesses that were called,” that defendant believed
the registration requirement was unfair and refused to obey. The court said it “tried to give a
lengthy continuance to [defendant], and stay these proceedings on this [t]rial, give him a chance
*** to register, and I think that would have been very relevant to this [t]rial and the issues in this
[t]rial about his mental state.”
¶ 24 The court allowed defendant to remain on bond pending sentencing. It “implore[d]” him
to register before sentencing, which would “go a long way towards helping resolve this issue in a
simpler fashion” and would be a condition of his sentence if he received probation.
¶ 25 Defense counsel filed, and amended, a posttrial motion challenging the sufficiency of the
evidence. The amended motion also claimed that the trial court “improperly considered irrelevant
facts and circumstances outside of evidence presented by the State” when it “repeatedly inquired
as to whether or not the defendant had registered as a sex offender since *** the inception of this
case” and “repeatedly referenced its concern that the defendant will not register as a sex offender
in the future during its ruling.”
¶ 26 Following an extended continuance due to the Covid pandemic, the court heard the posttrial
motion in October 2020. Defendant focused on the sufficiency of the evidence but also argued that
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it was improper for the court to consider in ruling at trial “whether or not [defendant] would register
in the future and whether or not [he] had registered since the inception of his criminal case.”
Following the State’s argument that it proved defendant guilty beyond a reasonable doubt, the
court denied the motion. After expressly finding that the State proved defendant guilty beyond a
reasonable doubt, the court said it “was giving a great deal of consideration to see if maybe he
might register but we are where we are. *** I acknowledge his individual decisions to be where
we are right now under all the circumstances. He was supposed to register, he didn’t register, I
found him guilty.”
¶ 27 The court immediately held a sentencing hearing. During the hearing, defendant personally
addressed the court, raising various issues with his case. He asserted he was arrested without a
warrant and placed in a holding cell “for an unreasonable period of time” before an attempt at
questioning. Defendant believed a sex offender being released from prison has to be placed on the
sex offender registry by the authorities before he or she is obligated to register his or her residence.
He stated he was not on the sex offender registry in Illinois or any other state, and no document
instructed him to register with the Chicago police. When the court asked him if he had a military
conviction for which he was imprisoned, defendant invoked the right against self-incrimination.
¶ 28 The court then said: “I’m really trying to find a way to keep you out of jail, but I know and
you know that you did some time for some incident that happened while you were in the Armed
Forces.” Defendant responded “I cannot talk about it. I had secret clearance.” The court replied:
“*** I’m telling you right now you are required by law to register as a sex offender. I know
you don’t want to and you may believe that there was something wrong with what
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No. 1-20-1331
happened previously and that you shouldn’t be in this position but this is the position you’re
in, you need to register.
I’ve tried for months to tell your lawyers to persuade you to try to register and try
to mitigate this situation and make it simpler for everybody, most importantly for yourself.
I’m asking you now will you register as a sex offender if I order you to.”
Defendant again invoked the right against self-incrimination. The court noted that he could receive
up to five years’ imprisonment or could receive probation, but registration would be a condition
of probation. The court revoked defendant’s bond and continued the case for sentencing to
November 2020. Before adjourning, the court told defendant that if he said at the next hearing he
was willing to register, the court “will be inclined to release you from custody and give you a
chance to do that before I go to sentencing.”
¶ 29 In November 2020, the court sentenced defendant to two years’ imprisonment. This appeal
timely followed.
¶ 30 On appeal, defendant first contends that the trial evidence was insufficient to convict him
beyond a reasonable doubt of violating the Act.
¶ 31 When the sufficiency of trial evidence is at issue, we must determine whether, taking the
evidence in the light most favorable to the State, any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. People v. Cline, 2022 IL 126383, ¶ 25. Taking
the evidence in the light most favorable to the State includes making all reasonable inferences from
the evidence in the State’s favor. Id. It is the responsibility of the trier of fact to weigh, resolve
conflicts in, and draw reasonable inferences from the evidence, and we do not substitute our
judgment for that of the trier of fact nor retry the defendant. Id. ¶¶ 33, 39; People v. Jackson, 2020
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IL 124112, ¶ 64. The positive and credible testimony of a single witness is sufficient to sustain a
conviction even if the defendant contradicts it. People v. Harris, 2018 IL 121932, ¶ 27. A trier of
fact may consider the evidence in light of his or her own knowledge and observations in the affairs
of life. People v. Newton, 2018 IL 122958, ¶ 28.
¶ 32 A trier of fact is not required to disregard inferences that flow normally from the evidence,
nor to seek all possible explanations consistent with innocence and elevate them to reasonable
doubt. Cline, 2022 IL 126383, ¶ 41. In other words, the State need not disprove or rule out all
possible factual scenarios. Newton, 2018 IL 122958, ¶ 27. If the evidence as a whole satisfies the
trier of fact beyond a reasonable doubt of the defendant’s guilt, it need not be satisfied beyond a
reasonable doubt as to each link in the chain of circumstances. Jackson, 2020 IL 124112, ¶ 70. A
conviction will be reversed only if the evidence is so unreasonable, improbable, or unsatisfactory
that a reasonable doubt of the defendant’s guilt remains. Cline, 2022 IL 126383, ¶ 25.
¶ 33 Defendant was found guilty of violating section 3(a)(1), (b) of the Act. In relevant part,
section 3(a) of the Act requires sex offenders (as defined in the Act) to, “within the time period
prescribed in subsections (b) and (c), register in person and provide accurate information as
required by the” State Police. 730 ILCS 150/3(a) (West 2018). Defendant does not dispute that his
certified military conviction, including the particular allegations to which he pled guilty and for
which he was sentenced, shows he is a sex offender under the Act. Id. § 2(A)(1)(a), (C).
¶ 34 Section 3(a)(1) provides that a sex offender who “resides or is temporarily domiciled for a
period of time of 3 or more days” in the City of Chicago must register at a fixed location designated
by the Superintendent of the Chicago Police Department. Id. § 3(a)(1). Section 3(b) provides that
a sex offender, “regardless of any initial, prior, or other registration, shall, within 3 days of ***
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establishing a residence *** or temporary domicile in any county, register in person as set forth in
subsection (a).” Id. § 3(b). For purposes of the Act, “the place of residence or temporary domicile
is defined as any and all places where the sex offender resides for an aggregate period of time of
3 or more days during any calendar year.” Id. § 3(a).
¶ 35 The evidence was sufficient to prove defendant guilty of violating the Act. Gonzalez’s
testimony that defendant had a bedroom and lived at the 16th Street home, the fact that defendant
was found and arrested there, and the Secretary’s records all support a reasonable inference that
defendant resided at the 16th Street home in Chicago since his April 2017 release from prison. His
2017 release date was shown by the Bureau records, which we shall address in more detail below.
The Secretary’s records showed defendant’s driver’s license and identification in 2017 listed his
address as the 16th Street home. They also showed defendant renewed his license with the 16th
Street home as his address in August 2018, after his arrest herein when he was on bond, supporting
the inference that it was and remained his residence.
¶ 36 Sergeant Echevarria’s testimony and the logs from his registration unit showed that
defendant did not register or attempt to register with the Chicago police between April 28, 2017,
and July 20, 2018, despite his residence in Chicago.
¶ 37 Lastly and crucially, Miller’s testimony established that, before his release from federal
prison, defendant was repeatedly informed of his obligation to register, and thus that his
subsequent failure to register was a knowing failure. The trial court was not, and we are not,
required to discount Miller’s clear testimony that he was present when defendant was informed of
his registration obligation in December 2016 merely because Miller himself did not speak the
words to defendant. Similarly, Miller testified that three documents, which were admitted into
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evidence, showed that Bureau employees informed defendant of his registration obligation in
meetings routinely held by the Bureau. See Ill. R. Evid. 803(6) (eff. Sep. 28, 2018) (admissibility
of a “memorandum, report, record, or data compilation, in any form, of acts, events, conditions,
opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person
with knowledge, if kept in the course of a regularly conducted business activity”). Miller testified
that he was present for the meetings underlying two of the three documents and that he reviewed
those documents before signing them when he did not attend meetings.
¶ 38 The fact that defendant did not sign the acknowledgements that he was admonished of his
registration obligation supports a reasonable inference that he was admonished (as Miller’s
testimony and the Bureau documents show) but was avoiding creating a more definitive record
that he was aware of his registration obligation because he intended to not register after his release.
As stated above (supra ¶¶ 26-27), we must make all reasonable inferences in favor of the State.
¶ 39 In sum, we find the evidence that defendant knowingly failed to register as the Act requires,
and as he was charged, was not so unreasonable, improbable, or unsatisfactory that reasonable
doubt of his guilt remains.
¶ 40 Nevertheless, defendant contends his conviction must be reversed because the State did not
present sufficient evidence that he established a “residence or temporary domicile in the City of
Chicago” for a period of at least three consecutive days. Specifically, citing People v. James, 2019
IL App (1st) 170594, and People v. Gomez, 2017 IL App (1st) 142950, he argues that the State
had to prove that he established a residence or temporary domicile at a specific location or address
in Chicago for a period of at least three consecutive days. Defendant contends that the evidence at
trial, viewed in the light most favorable to the State, established that he stayed with his father in
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the city of Chicago “more of the time, not all of it,” and this “vague statement” does not rise to the
level of establishing residency or domicile under the Act.
¶ 41 There is no consecutiveness requirement in the Act, which in relevant part provides that a
sex offender who “resides or is temporarily domiciled for a period of time of 3 or more days” in a
municipality must register with the municipal police. 730 ILCS 150/3(a)(1) (West 2018). Neither
James nor Gomez mentions three consecutive days. Indeed, the James court referred to proving
that the defendant “had spent an aggregate of three days at the address given, which is what the
statutory language requires in order for a violation to have occurred.” (Emphasis added) People v.
James, 2019 IL App (1st) 170594, ¶¶ 20-21; see 730 ILCS 150/3(a) (West 2018) (“the place of
residence or temporary domicile is defined as any and all places where the sex offender resides for
an aggregate period of time of 3 or more days during any calendar year”). Gomez, in turn, referred
to proving that the defendant “resided in Chicago both on that day and at least two other days in
that calendar year.” Gomez, 2017 IL App (1st) 142950, ¶ 20.
¶ 42 Here, the testimony of defendant’s father placed defendant in the 16th Street home, with
his own bedroom and seeing him most of the time, from his prison release to his arrest, which
other evidence showed to have been in April 2017 and July 2018, respectively. That period is
clearly much more than three days, so that a reasonable trier of fact could infer defendant resided
in the 16th Street home at least three days during a calendar year.
¶ 43 As to the specific location, “it is clear that the location of an offender’s residence is a critical
element in the offense of violating section 3 of SORA.” James, 2019 IL App (1st) 170594, ¶ 20
(citing Gomez, 2017 IL App (1st) 142950, ¶¶ 28-30 (rejecting the State’s proposition therein that
“it was ‘not required to prove exactly where defendant was staying or residing’ to establish his
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guilt.”)). Here, all evidence relating to where defendant resided (had a bedroom and was seen by
his father most of the time from his release until his arrest), declared his residence (to the
Secretary), and was present (at his arrest) were consistent with one specific location: the 16th Street
home. The State thus proved defendant resided at a particular residence in Chicago, the 16th Street
home, for more than the requisite three days. We are not required to elevate to reasonable doubt
the possibility that defendant had a bedroom in Gonzalez’s home from his 2017 release to his July
2018 arrest but did not live there merely because Gonzalez could not confirm defendant spent
every night in his bedroom and Gonzalez spent “[m]ore of the time, not all of it,” with defendant.
¶ 44 This case is therefore distinguishable from Gomez, wherein the court concluded the State
merely proved defendant was present in Chicago when he was arrested rather than that he “resided
in Chicago on that date,” let alone that “he had resided in Chicago both on that day and at least
two other days in that calendar year, to reach the necessary three-day, temporary-domicile element
under the statute.” (Emphasis in original.) Gomez, 2017 IL App (1st) 142950, ¶ 20. The court held
the State failed to prove that the defendant permanently resided, or was temporarily domiciled, in
Chicago and, therefore, failed to prove he was required to register in Chicago. Id. Here, in contrast,
the State did prove defendant resided in Chicago at a specific address for the necessary three days.
In sum, we see no reason in James or Gomez to disturb our conclusion that the evidence was
sufficient to convict defendant beyond a reasonable doubt.
¶ 45 Defendant also contends that the court deprived him of due process by “instructing” him
during trial to provide evidence of current registration, thereby shifting the burden to the defense,
and by “admitting” that his failure to register, a fact not in evidence, was a factor in its guilty
finding.
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¶ 46 The State responds that the court did not tell defendant to register until after the defense
had rested its case, when the court had already determined on proper evidence that he was required
to register but had not registered. It also contends that, in context of the entire record, the court
was urging defendant to register as mitigation for sentencing purposes.
¶ 47 As a threshold matter, the State contends that defendant has forfeited this claim by not
objecting at trial and has forfeited a plain-error argument by not raising one in his initial brief.
Generally, a claim is forfeited for review if it is not both raised by objection at trial and preserved
in the posttrial motion. People v. Jackson, 2022 IL 127256, ¶ 15. Failure to raise a claim at trial
deprives the trial court of an opportunity to correct the error, and requiring a timely objection
prevents “defendants from sitting idly by and knowingly allowing an irregular proceeding to go
forward only to seek reversal due to the error when the outcome of the proceeding is not favorable.”
Id. However, the plain error rule provides that a reviewing court may consider a forfeited issue if
the defendant shows a clear or obvious error and either (1) the evidence was so closely balanced
that the guilty verdict or finding may have resulted from that error, or (2) the error was so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process. Id. ¶ 19. Claims of forfeiture and plain error can themselves be forfeited by not raising
them on appeal. People v. Russell, 2022 IL App (2d) 190733, ¶ 45; People v. Phillips, 2022 IL
App (1st) 181733, ¶ 156.
¶ 48 Defendant’s opening brief does address whether he preserved this error. In particular,
defendant contends that trial counsel was not obligated to object to improper findings outside the
evidence once counsel argued in closing that the State’s evidence was insufficient, so that the issue
was preserved by its inclusion in the posttrial motion. “[A] defendant need not interrupt a trial
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court to correct a trial court’s misapprehension, after defense counsel has just argued the same to
the court.” People v. Mitchell, 152 Ill. 2d 274, 324 (1992). Here, trial counsel argued to the trial
court in closing, shortly after the court asked again if defendant was registered, that the focus of
this case was whether the State proved that defendant knowingly failed to register under the Act
as charged, not what he might or might not do in the future.
¶ 49 The claim on appeal is that “the trial court considered the lack of evidence of current
registration, a fact not in evidence, in reaching its” finding. A reminder to the court in closing
argument that it should consider the elements of the offense and not what defendant may do in the
future, made long after the court first asked if defendant had registered, is not “argu[ing] the same
[claim] to the court” as in Mitchell. The closing argument noted by defendant does not alter that
trial counsel never objected when the court repeatedly asked if defendant registered, nor when it
commented on the subject. Until the posttrial motion, trial counsel did not clearly claim that the
court’s inquiries and comments regarding current registration were improper or erroneous.
¶ 50 Defendant’s failure to clearly object during trial deprived the court of the opportunity to
stop pressing the matter of current registration and to avoid considering defendant’s registration
status in reaching its finding. Raising the claim in the posttrial motion, when it would be difficult
to separate the current registration issue from the trial evidence, was no substitute. We reject
defendant’s argument that he preserved the issue in the trial court and find this claim forfeited.
¶ 51 Having found forfeiture, we turn to plain error, which defendant raises in his reply brief.
See People v. Ramsay, 239 Ill. 2d 342, 412 (2010) (a defendant may raise plain error for the first
time in a reply brief). Under both prongs of the plain error doctrine, the defendant has the burden
of persuasion. Jackson, 2022 IL 127256, ¶ 19. Generally, the first step in plain error review is to
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determine whether a clear and obvious error occurred. Id. ¶ 21. Here, however, assuming arguendo
that the trial court erred in considering matters outside the trial evidence, specifically the lack of
evidence demonstrating defendant had recently registered, we find the error did not amount to
plain error under either prong of the analysis.
¶ 52 To prove first prong plain error, defendant must prove “ ‘prejudicial error’,” i.e., that the
evidence was so closely balanced that the error alone severely threatened to tip the scales of justice
against him. People v. Adams, 2012 IL 111168, ¶ 21 (quoting People v. Herron, 215 Ill. 2d 167,
187 (2005)). In determining whether this prong has been met, we must make a “ ‘commonsense
assessment’ ” of the evidence within the context of the circumstances of this case. Id. ¶ 22 (quoting
People v. White, 2011 IL 109689, ¶ 139).
¶ 53 We find no first prong plain error here. We consider it key that the court did not either
inquire as to defendant’s current registration nor comment on it until after the State and defense
both rested their cases. For the reasons stated above regarding the sufficiency of the evidence, the
court had heard trial evidence sufficient to convict defendant before it raised the matter of his
current registration. Accordingly, under the circumstances of this case, the evidence was not so
closely balanced that the court’s consideration of defendant’s continued failure to register
prejudiced him. The evidence presented at trial was sufficient to demonstrate his guilt before the
alleged error occurred.
¶ 54 To prove second prong plain error, defendant must prove the error was so serious that it
affected the fairness of his trial and challenged the integrity of the judicial process. Adams, 2012
IL 111168, ¶ 21. Our supreme court has equated second prong plain error with structural error, and
a defendant who establishes that structural error occurred need not show prejudice from the error
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No. 1-20-1331
as “prejudice to the defendant is presumed because of the importance of the right involved.”
Jackson, 2022 IL 127256, ¶ 28. Conversely, trial errors subject to harmless error analysis are not
structural, and even most constitutional errors are trial errors rather than structural. Id. ¶ 37 (citing
United States v. Gonzalez-Lopez, 548 U.S. 140, 148 (2006)). “Courts apply the harmless error
doctrine to most errors, constitutional and otherwise, to promote the public’s confidence and
respect for the criminal process by focusing on the underlying fairness of the criminal trial rather
than on the presence of inconsequential error.” Id. ¶ 72 (citing Delaware v. Van Arsdall, 475 U.S.
673, 681 (1986)).
¶ 55 Structural error is not limited to those identified by the United States Supreme Court:
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, and a defective reasonable
doubt instruction. Id. ¶¶ 29-30 (citing Washington v. Recuenco, 548 U.S. 212, 218 n.2 (2006)).
That said, “we often look to the types of errors that the United States Supreme Court has found to
be structural error and determine whether the error being considered is similar.” Id. ¶ 30. “The
commonality of these errors is that they affect the framework within which the trial proceeds,
rather than mere errors in the trial process itself.” Id. ¶ 29 (citing Arizona v. Fulminante, 499 U.S.
279, 310 (1991)).
¶ 56 Here, the claimed error is that “the trial court’s inquiry below amounted to a private
investigation,” and “the trial court considered the lack of evidence of current registration, a fact
not in evidence, in reaching its verdict.” The trial court’s deliberations in a bench trial are limited
to the record made before the court in the course of the trial. People v. Heard, 2021 IL App (1st)
192062, ¶ 16. A court’s determination based upon its private investigation or private knowledge,
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No. 1-20-1331
untested by cross-examination or the rules of evidence, constitutes a denial of due process. Id. The
presumption that the trial court considered only competent evidence can be rebutted by affirmative
evidence to the contrary in the record. Id. ¶ 19.
¶ 57 Assuming arguendo that the trial court erred in pursuing and considering matters outside
the trial evidence, we find that to be trial error; that is, an error in the trial process rather than an
error affecting the framework within which defendant’s trial occurred. The error of a trial court
considering matters outside the record or conducting a private investigation requires reversal only
when the court’s reliance on matters outside the record is prejudicial. People v. Smith, 176 Ill. 2d
217, 238 (1997); People v. Pellegrini, 2019 IL App (3d) 170827, ¶ 64. Stated another way, such
an error is subject to harmless error analysis. People v. Salinas, 383 Ill. App. 3d 481, 502 (2008);
People v. Dunn, 326 Ill. App. 3d 281, 286-87 (2001); see also In re T.R., 2019 IL App (4th) 190529,
¶ 98. Therefore, the alleged error before us is not structural and thus not second prong plain error.
Because defendant cannot establish plain error, we honor his forfeiture of this claim.
¶ 58 Accordingly, the judgment of the circuit court is affirmed.
¶ 59 Affirmed.
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