People v. Arzola ( 2021 )

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).
2021 IL App (3d) 190480-UOrder filed September 17, 2021
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2021
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 13th Judicial Circuit,
) La Salle County, Illinois.
Plaintiff-Appellee, )
)
v. ) Appeal No. 3-19-0480
) Circuit No. 18-CF-530
SERGIO A. ARZOLA, )
) Honorable Cynthia M. Raccuglia,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court.
Justices O’Brien and Wright concurred in the judgment.
ORDER
¶1 Held: The circuit court’s failure to comply with Illinois Supreme Court Rule
431(b) is not reversible plain error, as the evidence is not closely balanced.
¶2 Defendant, Sergio A. Arzola, appeals from his conviction for unlawful delivery of a
controlled substance. He contends that the La Salle County circuit court erred by failing to properly
question jurors in accordance with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). We
affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant by indictment with unlawful delivery of a controlled
substance (720 ILCS 570/401(c)(1) (West 2018)). On June 17, 2019, the cause proceeded to a jury
trial.
¶5 During jury selection, the court admonished each panel of jurors of the Rule 431(b)
principles. The court told the prospective jurors that defendant is presumed innocent of the charge
against him, and that the State must prove defendant’s guilt beyond a reasonable doubt. Then the
court stated “[t]he defendant doesn’t have to testify. He doesn’t have to present evidence; and if
he does not, then you must not assume anything by that ***. Because he has nothing to prove.”
The court repeated substantially the same admonishment to each panel of prospective jurors.
¶6 The court asked 17 potential jurors whether they understood and accepted “that principle
of law” and one juror if she understood and accepted “the principle of law.” The court also asked
one juror whether he understood and accepted “the principle of the presumption of innocence” and
another juror whether she understood and accepted “the presumption of innocence.” Several of the
improperly questioned potential jurors became members of the jury.
¶7 At trial, Allison Beatty testified that on October 12, 2018, officers from the Mendota Police
Department conducted a vehicle stop and found her in possession of heroin. To avoid a criminal
charge, Beatty completed two controlled drug purchases as a confidential informant for the Tri-
DENT task force.
¶8 On November 6, 2018, Beatty participated in a controlled drug purchase. Beatty notified
Agent Brad Martin of the Tri-DENT task force that she planned to meet with defendant to purchase
heroin. Beforehand, Beatty met with Martin and Agent Sherry Barto to prepare for the purchase.
The agents gave Beatty a covert camera and $230 in cash. Beatty then drove to defendant’s
residence. Once there, Beatty went to the door and asked for defendant. After speaking with an
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individual at the door, Beatty returned to her vehicle. A few minutes later, defendant entered the
vehicle. Beatty gave defendant $230, and in return, defendant gave Beatty 13 packages of tinfoil
containing heroin. After the purchase, Beatty met Martin and Barto and gave the agents the tinfoil
packages.
¶9 The State entered the video captured by the covert camera into evidence and published the
video to the jury. The video showed Beatty exit her vehicle, speak with a person inside the front
door, and return to her vehicle. Approximately two minutes later, defendant entered Beatty’s
vehicle. While he sat in the front passenger seat, the camera was positioned facing defendant’s
upper body and face. Beatty indicated that she brought defendant “all [his] money” and “it [was]
all there.” Defendant then counted out loud and appeared to sift through and shuffle several items
in his lap. Defendant looked through his pockets and indicated that “there should be 15.” Beatty
told defendant that she would contact him for the missing amount.
¶ 10 On cross-examination, Beatty testified that she had consumed drugs in various ways in the
past. Beatty had delivered heroin before and allowed someone to use her vehicle to transport
heroin. Beatty testified that when first confronted by police on October 12, 2018, she told officers
that the heroin discovered on her person belonged to someone else. Later, Beatty told officers that
she planned to use the heroin herself.
¶ 11 Martin testified that he was assigned to the drug task force known as Tri-DENT. On
November 6, 2018, Beatty informed Martin that she had made arrangements to purchase heroin.
In preparation for the purchase, Martin and Barto met Beatty and searched her vehicle. They did
not locate any contraband. Martin provided Beatty with $230 and a covert camera to record the
purchase. Martin and Barto followed Beatty to defendant’s residence. Martin did not lose sight of
Beatty’s vehicle. Martin watched Beatty walk to the front door of defendant’s residence and return
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to her vehicle. A short time later, defendant exited the residence and entered Beatty’s vehicle. After
several minutes, defendant returned to the residence. Martin and Barto followed Beatty to a
prearranged location. There, Beatty gave Martin the tinfoil packages containing heroin. Martin
searched Beatty’s vehicle and did not locate money or contraband.
¶ 12 Barto testified that she was a deputy with the Bureau County Sheriff’s Department and
worked as an agent with Tri-DENT. On November 6, 2018, she surveilled Beatty while she
completed a controlled purchase of heroin. In preparation, Barto completed a search of Beatty’s
person and vehicle. Barto did not locate any contraband. Following the searches, Barto observed
defendant enter Beatty’s vehicle and exit a few minutes later. After the transaction, Barto followed
Beatty to the predetermined location and searched her person and vehicle. Again, Barto did not
locate money or contraband.
¶ 13 A forensic scientist at the Illinois State Police crime laboratory testified that she received
the tinfoil packages that officers collected from Beatty and identified the substance located therein
as heroin.
¶ 14 The jury found defendant guilty. The court sentenced defendant to 12 years’ imprisonment.
Defendant appeals.
¶ 15 II. ANALYSIS
¶ 16 Defendant first argues the circuit court failed to strictly comply with Illinois Supreme Court
Rule 431(b) (eff. July 1, 2012) because the court did not ask potential jurors if they understood
and accepted the four Rule 431(b) principles. Instead, the court asked jurors if they understood and
accepted “that principle of law,” “the principle of law,” “the principle of the presumption of
innocence,” and “the presumption of innocence.” Defendant also contends the court erred in its
Rule 431(b) admonishment where it stated the last two principles out of order. Defendant
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acknowledges that he forfeited this issue but contends that the issue is a reversible plain error
because the evidence is closely balanced.
¶ 17 Under the plain-error doctrine, we must first determine whether a “plain error” occurred.
People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). “The word ‘plain’ *** is synonymous with
‘clear’ and is the equivalent of ‘obvious.’ ” Id. at 565 n.2. If we determine that the circuit court
committed a plain error, the second step is to determine whether that error is reversible. Id. A plain
error is reversible when “the evidence is so closely balanced that the error alone threatened to tip
the scales of justice against the defendant, regardless of the seriousness of the error.” Id. at 565.
¶ 18 Rule 431(b) requires the court to ask whether each juror
“understands and accepts the following principles: (1) that the defendant is
presumed innocent of the charge(s) against him or her; (2) that before a
defendant can be convicted the State must prove the defendant guilty
beyond a reasonable doubt; (3) that the defendant is not required to offer
any evidence on his or her own behalf; and (4) that if a defendant does not
testify it cannot be held against him or her.” Ill. S. Ct. R. 431(b) (eff. July
1, 2012).
Rule 431(b) “mandates a specific question and response process.” People v. Thompson, 238 Ill. 2d
598, 607 (2010). The circuit court must ask each potential juror whether he or she “understands
and accepts” each of the four principles listed in the rule. Ill. S. Ct. R. 431(b) (eff. July 1, 2012);
People v. Wilmington, 2013 IL 112938, ¶¶ 30, 32. Then, the court must allow each prospective
juror the opportunity to respond regarding their understanding and acceptance of those principles.
Thompson, 238 Ill. 2d at 607.
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¶ 19 In the present case, the circuit court failed to comply with Rule 431(b) because it did not
ask each juror whether they understood and accepted all four principles. See Wilmington, 2013 IL
112938, ¶¶ 30, 32. Moreover, it is not clear which principle the court was referencing when, in
questioning some jurors, it referred to “that principle” or “the principle.” We will assume,
arguendo, that the court also erred by stating the last two Rule 431(b) principles out of order while
admonishing prospective jurors. Because we find the court committed plain error, we must
determine whether that error is subject to reversal because the evidence is closely balanced.
¶ 20 To determine if the evidence is closely balanced, “a reviewing court must undertake a
commonsense analysis of all the evidence in context.” People v. Belknap, 2014 IL 117094, ¶ 50.
This “inquiry involves an assessment of the evidence on the elements of the charged offense or
offenses, along with any evidence regarding the witnesses’ credibility.” People v. Sebby, 2017 IL
119445, ¶ 53. The court must take a qualitative approach to the evidence and consider it “within
the context of the circumstances of the individual case.” People v. Adams, 2012 IL 111168, ¶ 22.
Evidence can be closely balanced when each party presents credible witnesses or where the
credible testimony of a witness is countered by evidence that casts doubt on his or her account.
Sebby, 2017 IL 119445, ¶ 63.
¶ 21 As charged in this case, a person commits the offense of unlawful delivery of a controlled
substance when he knowingly delivers a substance containing heroin, and the substance weighs 1
gram or more but less than 15 grams. 720 ILCS 570/401(c)(1) (West 2018).
¶ 22 The State’s case predominantly derived from Beatty’s testimony. Beatty arranged the
controlled heroin buy with defendant after she became a confidential informant. After setting up
the buy and being prepped by Martin and Barto, Beatty purchased $230 worth of heroin from
defendant. By itself, Beatty’s testimony proved that defendant committed the charged offense.
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Additionally, Beatty’s testimony was credible as it was corroborated by the video recording of the
heroin buy. The video showed defendant enter Beatty’s vehicle, speak with Beatty, and exit the
vehicle. Also, the video recorded Beatty state that she had money for defendant. Afterward,
defendant proceeded to count out loud, sift through items in his lap, and look through his pockets
before announcing that he possessed an incorrect amount.
¶ 23 Martin and Barto’s testimony further corroborated Beatty’s testimony where the agents
searched Beatty and her vehicle before and after the transaction and observed defendant enter and
exit Beatty’s vehicle. The agents observed that before the transaction Beatty had no contraband
and had the $230 given to her to make the heroin purchase. Afterward, Beatty no longer had the
$230, and instead, possessed tinfoil packages containing heroin. Forensic testing established that
the tinfoil packages collected from Beatty contained heroin.
¶ 24 This evidence was not close. Given the recording and corroborating details from the agents
and forensic scientist, the State readily proved that defendant unlawfully delivered heroin to
Beatty. Therefore, the court’s Rule 431(b) plain error is not reversible plain error.
¶ 25 III. CONCLUSION
¶ 26 For the foregoing reasons, we affirm the judgment of the circuit court of La Salle County.
¶ 27 Affirmed.
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