People v. Newton , 2021 IL App (1st) 182044-U ( 2021 )

2021 IL App (1st) 182044-UNo. 1-18-2044
Order filed June 30, 2021
Sixth 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. 17 CR 13158
)
DION NEWTON, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE ODEN JOHNSON delivered the judgment of the court.
Presiding Justice Mikva concurred with the judgment.
Justice Harris dissented.
ORDER
¶1 Held: We vacate defendant’s conviction and remand for a new trial, where the trial court
erred in not permitting the jury instruction for the lesser included offense, criminal
trespass to a vehicle, when there was some evidence presented at trial, that if
believed by a jury, could have resulted in a conviction of that offense. We find
defendant was improperly sentenced as a Class X offender based on the plain
language of the statute pursuant to section 5-4.5-95(b) (730 ILCS 5/5-4.5-95(b)
(West 2018)) of the Unified Code of Corrections. We find the prosecutor’s
statements in closing argument to be improper, however, there is no plain error
where defendant cannot show the requisite prejudice.
No. 1-18-2044
¶2 Following a jury trial, defendant Dion Newton was found guilty of possession of a stolen
vehicle and was sentenced to eight years’ imprisonment. On appeal, defendant contends that: (1)
the trial court erred in denying his request to submit a jury instruction for the lesser included
offense of criminal trespass to a vehicle; (2) defendant should not have been sentenced as a Class
X offender, and (3) the State’s closing argument was improper when it made misstatements of law
and fact. For the following reason, we vacate and remand.
¶3 BACKGROUND
¶4 Defendant was arrested and charged with possession of a stolen vehicle in connection with
events that occurred on August 26 and 28, 20171.
¶5 At trial, Emmanuel Udoh (Emmanuel) testified that on August 26, 2017, at approximately
10 p.m. he was in the area of 62nd and Ashland in Chicago. He was driving his mother’s black
2002 Nissan Xterra to J & J’s Fish Shack (J&J). Upon arriving at J&J, Emmanuel parked the
vehicle on 62nd Street facing Ashland, so he would be able to drive out easily after retrieving his
food. As he was walking to the car from J&J, Emmanuel was approached by two males who asked
him “are you going to come off those keys.” Emmanuel felt threatened and understood them to
mean that he should give them his car keys. Emmanuel had his keys in his hand and one of the
men reached for them, at that point Emmanuel lifted the hand the keys were in and swung at the
man; he missed. The same man then swung at Emmanuel, striking him, resulting in Emmanuel
dropping the keys and backing away from the men. Emmanuel walked home while also calling the
police to report the incident.
1
The events occurred in 2017 and this order will reflect that, however, throughout the trial and pleadings
the parties refer to the year in question as 2018.
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No. 1-18-2044
¶6 On August 28, 2017, Emmanuel was informed that the police recovered the vehicle and
they wanted him to come in to identify the two men in a photo array. Emmanuel signed a form
before viewing the photo array. Emmanuel identified an individual who he thought took the vehicle
from him but admitted that the conditions that night were dark, and the incident happened within
“seven or eight seconds.” Emmanuel identified the State’s Exhibit 1 as a title certificate showing
that his mother, Mary Udoh, owned the 2002 Nissan Xterra, and confirmed that he and his mother
shared the vehicle. Emmanuel identified the State’s Exhibit 2 as a photo of the 2002 Nissan Xterra,
and it was in the same condition as when he drove it on August 26, 2017.2 Emmanuel testified that
he did not know defendant and did not give him permission to drive his car on August 28, 2017.
¶7 On cross examination Emmanuel testified that his name was not on the title, instead it was
only in his mother’s name. Emmanuel testified that defendant’s photo was among the photos that
were shown to him, however, he did not identify defendant as one of the two men involved and
instead identified a man that was not defendant. Emmanuel clarified that the form he signed before
viewing the photo array permitted him to be video and audio recorded.
¶8 Chicago Police Officer Daniel Symons testified that on August 28, 2017, at approximately
12:30 a.m., he was working patrol with his partner Officer Girard near 63rd Street and Ashland.
Symons testified that he saw a black Nissan Xterra go past his patrol vehicle and he ran the license
plates to check for expired registration. The license plate number Z429045 was listed as stolen.
Symons then radioed into dispatch to verify that the stolen status was still valid. Symons received
confirmation, indicated the direction in which the vehicle was travelling, and proceeded to follow
the vehicle westbound on 63rd Street. No other cars were between the stolen car and the patrol car.
While waiting for assisting units, Symons activated his lights and curbed the stolen vehicle.
2
At this time, the State moved to enter Exhibit 2 into evidence and defendant did not object.
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No. 1-18-2044
Symons exited his vehicle and approached the driver’s side of the curbed vehicle. Symons had the
driver of the vehicle exit the car and identified the driver to be defendant. Symons’ body camera
video was shown to the court.
¶9 On cross examination, Symons testified that defendant was cooperative during his
detainment. He did not observe any damage to the steering column before transporting defendant
to the police station and processing him. On redirect examination Symons testified that after
processing, Detective Freitag took over the investigation.
¶ 10 Chicago Police Detective Thomas Freitag testified that on August 28, 2017, at
approximately 1 a.m. he was working as a detective in a robbery unit and was assigned to this case.
Freitag gave defendant his Miranda rights and, at defendant’s request, talked to him in the
processing area at approximately 5 a.m. Freitag identified defendant in court as the person he spoke
to. Defendant told Freitag that he saw a man exit a vehicle quickly while on a phone followed by
a group of people running toward the car. Defendant stated that he ran towards the car and told the
group to not take the car. He got in the vehicle, which had the keys in the ignition and was running,
along with another man who he did not know. He stated that he tried to park the vehicle but instead
drove away with the other man still inside. The other man stated he wanted to sell the car to which
defendant told him no. Defendant told Freitag that he did not see anyone touch the man on the
phone and that he did not touch him either. Defendant knew the person on the phone from the
neighborhood and he proceeded to drive around looking for the owner so he could give back the
car. He could not find him, so he proceeded to keep the car because his car was in the shop and
the car was actually helping him. He kept going back to the spot where the man walked away from
the car, but never saw him and he did not know where he lived. When Freitag asked defendant
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why he did not just take the car to the police, he told him he probably should have but he did not
steal the car. At that point, defendant had nothing else to say.
¶ 11 On cross examination Freitag testified that there were many ways to take a statement from
someone in custody such as having that person write a statement, write the statement himself, or
record the statement where mandated by the law. Those methods were not used to take defendant’s
statement. Freitag testified that videotape recording is not available to detectives at the seventh
district. Emmanuel was videotaped by a detective from another district, who was located at the
seventh district at the time. On redirect examination, Freitag testified that he memorialized
defendant’s statement in his supplemental reports and that defendant’s statement was not required
to be recorded pursuant to the statute. Emmanuel’s identification from the photo array was
recorded with Emmanuel’s consent. On recross examination, Freitag admitted that he never gave
defendant the option to have his statement recorded.
¶ 12 Defendant’s motion for a directed verdict was denied.
¶ 13 Defendant sought to have instructions submitted to the jury that included the lesser
included offense of trespass to a vehicle. Defendant argued that based on the evidence submitted
to the jury, that could be an issue for it to consider. The State objected to the inclusion of the
instruction of criminal trespass to a vehicle, arguing it to be inapplicable because no evidence was
presented to warrant the jury receiving that instruction. Defendant’s statement showed that he took
the vehicle by theft and continued to possess it. In rebuttal, defendant argued that no one had
identified defendant as having taken the vehicle. It was up to the jury to make credibility
determinations on the evidence presented. The trial court denied the request for an instruction on
criminal trespass to a vehicle. In denying the request, the trial court provided a short synopsis of
the evidence, stating it did not demonstrate that a criminal trespass to a vehicle occurred: defendant
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No. 1-18-2044
was present when the car was taken by force, got in the car, and two days later was still caught
driving the car.
¶ 14 The State entered its exhibits into evidence and rested its case-in-chief. Defendant rested
its case without presenting any witnesses.
¶ 15 The trial court informed the jury that the parties were about to present closing arguments
and admonished the jury that closing arguments were not to be considered evidence. The court
further admonished the jury that the evidence had already been presented and when they go into
the jury room, they were to make their determination on the evidence. Additionally, the court stated
that if anything was said by the parties in closing arguments that the jurors felt was not based in
evidence; it should be disregarded.
¶ 16 The State summarized the evidence as defendant taking something that did not belong to
him and consequently was charged with possession of a stolen vehicle. The State argued that
possession was established when the bodycam showed defendant in possession of the vehicle.
Their case was further supported by Freitag’s testimony that defendant admitted that when he saw
the vehicle was still running with the key in it, he got in it and drove off. Additionally, the victim
established that defendant was not entitled to possession and defendant knew the vehicle was
stolen because of the statements that he made to Freitag.
¶ 17 Defendant argued that he did not take anything that did not belong to him which was
evident from the testimony presented. Defendant noted that everything in the case was recorded
except defendant’s statement to Freitag. Freitag did not take defendant’s statement by having
defendant write it, by writing it for the defendant, or by recording it in any other manner. The
reason, defendant argued, was because the photo array yielded negative results as to an
identification of defendant. Additionally, there was a series of events that demonstrated that
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No. 1-18-2044
defendant did not attack the victim, so instead of pursuing the individuals that actually took the
vehicle, the state pieced together what they knew and stuck it on defendant. It was up to the jury
to determine the statement’s credibility.
¶ 18 In rebuttal, the State reiterated that defendant took something without permission and
acknowledged that “[t]he police didn't record his statement, because they followed the law. . .
“[t]hat's not a crime that they can video record the defendant.” Defendant objected, and the trial
court overruled the objection. The State continued, “[a]nd he didn't give his permission to be
recorded. So, no, there isn't a recording of that, because the police followed proper procedures,
and they did their job that day.” The State distinguished Emmanuel’s recording by arguing that he
was a victim, and he gave his consent to be recorded. Lastly, the State argued that it did not matter
who Emmanuel picked out of the photo array when defendant was found to be in possession of a
stolen vehicle.
¶ 19 The trial court reiterated to the jury that the closing arguments were not to be considered
evidence. After deliberation, the jury found the defendant guilty of possession of a stolen vehicle.
The proceedings were continued for sentencing.
¶ 20 Prior to sentencing, on June 26, 2018, defendant filed a motion for a new trial. The motion
argued that: (1) the State failed to prove defendant guilty beyond a reasonable doubt; (2) the finding
was against the weight of the evidence; (3) defendant was denied due process of the law; (4)
defendant was denied equal protection of the laws; (5) the State failed to prove every material
allegation of the offense beyond a reasonable doubt; (6) defendant did not receive a fair and
impartial trial; and (7) the trial court erred in overruling the defendant’s motion for a directed
verdict at the close of the State’s case.
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¶ 21 On July 2, 2018, defendant was granted leave to proceed pro se. Defendant filed a pro se
motion to dismiss for lack of personal and subject matter jurisdiction arguing that the state of
Illinois needed to have an existing contract with defendant in order for it to sue him and for the
trial court to have jurisdiction. The trial court instructed defendant that the charging document
was controlling and that the complaining witness was the state of Illinois. Defendant’s motion to
dismiss was denied.
¶ 22 On July 9, 2018, defendant filed a pro se motion for a new trial, arguing that: (1) defendant
was not given his Miranda rights prior to giving a statement; (2) the statement that was made at
the police station was not written or otherwise recorded; and (3) defendant was not picked out of
a line-up. At the hearing on August 9, 2018, defendant argued the motion pro se. The trial court
denied the motion for a new trial finding that: the State properly used statements that defendant
made after he was provided his Miranda rights; the fact that his statement was not written or
videotaped was for the jurors to weigh; and even though he was not picked out of the photo array,
he was only charged with possessing a stolen vehicle and not with actually stealing it from the
victim. At that point, defendant agreed to have defense counsel represent him going forward.
¶ 23 On August 24, 2018, defense counsel was granted leave to file an amended motion for a
new trial, which argued that: (1) the trial court erred in denying defendant’s motion to suppress
statements 3; (2) the State failed to prove defendant was guilty of the charge beyond a reasonable
doubt; (3) the finding was against the weight of the evidence; (4) defendant was denied equal
protection of the laws; (5) the State failed to prove every material allegation of the offense beyond
3
Prior to trial, defendant filed a motion to suppress any and all statements or communications he made to
any law enforcement official on August 28, 2017. The trial court denied the motion finding that the
statements made were permissible pursuant to Oregon v. Elstad, 470 U. S. 298 (1985).
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No. 1-18-2044
a reasonable doubt; (6) defendant did not receive a fair and impartial trial when the trial court: (i)
allowed two prior convictions (16 5004791 and 12 C 440125) of defendant, in the event that
defendant testified, and (ii) denied defense counsel’s request for the lesser included offense jury
instruction of criminal trespass to a vehicle; and (6) the trial court erred in overruling the
defendant’s motion for a directed verdict at the closed of the State’s case.
¶ 24 On August 29, 2018, the hearing on the amended motion for a new trial occurred.
Defendant briefly pointed out that the trial court erred by denying the motion to suppress statement
because Missouri v. Seibert, 542 U.S. 600, applied. Defendant argued that the State failed to prove
defendant was guilty beyond a reasonable doubt because they never called the owner, Mary Udoh,
as a witness. Lastly, defendant argued that the trial court erred in denying the jury instructions for
a lesser included offense of criminal trespass to a vehicle.
¶ 25 The State argued that the trial court’s decision in the motion to suppress was correct. It did
not need to call Mary Udoh when there was a certified title showing she was the owner entered
into evidence and Emmanuel testified that he did not provide defendant permission to have the car.
Lastly, they argued that they did prove defendant was guilty beyond a reasonable doubt.
¶ 26 The trial court determined that it did not matter if the owner testified or not, the issue was
possession not ownership. The vehicle was taken from Emmanuel, who testified, while defendant
was in possession of it. 4 The amended motion was denied.
¶ 27 At sentencing, the State offered in aggravation defendant’s criminal background which
included: a 1994 conviction for aggravated discharge of a firearm (94 CR 06243), a 2001
conviction for unlawful use or possession of a firearm by a felon (01 CR 13086), a 2003 conviction
for burglary (03 CR 15542), a 2007 conviction for possession of controlled substances (07 CR
4
Part of the trial court’s findings were inaudible for the court reporter.
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15631), a 2012 conviction for retail theft (12C4440125), and multiple misdemeanor offenses. The
State argued that defendant’s 1994 conviction for aggravated discharge of a firearm and 2003
conviction for burglary required him to be sentenced as a Class X offender, which would make his
sentencing range 6 to 30 years.
¶ 28 In mitigation, defendant argued that the events of the 1994 conviction occurred when
defendant was 155 but was adjudicated as an adult. Defendant also offered the following facts in
mitigation: obtained his G.E.D., was employed, had high blood pressure, and was diagnosed with
a learning disability. Additionally, defendant had a stable family home, but recently lost his
mother. As a result, defendant asked for leniency and to be sentenced to six years.
¶ 29 The trial court noted that defendant had five previous felony convictions along with other
“minor stuff.” Under the totality of the circumstances the trial court found it fitting to sentence
defendant as a Class X offender to an eight-year prison term and a three-year mandatory supervised
release period.
¶ 30 On the same date defendant filed a motion to reconsider the sentence. The motion argued
that the sentence was improper given defendant’s background, the trial court considered matters
implicit in the offense, the State failed to prove eligibility for enhanced penalty or extended term,
and the sentence penalized defendant for exercising his right to trial. There was no argument on
the motion, but the trial court found that the sentence of eight years was lenient compared to the
30 years maximum. As such, the motion was denied, and this timely appeal followed.
¶ 31 ANALYSIS
¶ 32 On appeal, defendant contends that: (1) the trial court erred in denying his request to submit
an instruction to the jury for the lesser included offense of criminal trespass to a vehicle; (2)
5
Defendant was 17 when the crime occurred, which was reflected in the PSI created at the time.
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No. 1-18-2044
defendant should not have been sentenced as a Class X offender, and (3) the State’s closing
argument was improper when it made misstatements of law and fact.
¶ 33 A. Jury Instruction
¶ 34 The State’s theory of the case was that defendant knew the vehicle in his possession was
stolen because he was the one who intended to permanently deprive the owner of it. However, the
State’s witness, Freitag, testified that defendant told him that he jumped in the car in an attempt to
stop other people who were trying to steal it and that he continued to look for the owner of the car
in order to return it to him. Defendant contends that this evidence, if believed by the jury, would
warrant a finding that defendant was not guilty of possession of a stolen vehicle but rather criminal
trespass to a vehicle. Accordingly, defendant contends, the trial court was obligated to submit this
question of fact to the jury and the failure to do so constituted reversable error.
¶ 35 The State contends that the intent to permanently deprive the vehicle owner is not an
element of the charge of possession of a stolen vehicle. Therefore, failure to prove the element of
intent did not entitle defendant to a jury instruction on criminal trespass to a vehicle. The State
further argued that the trial court properly exercised its discretion in refusing to give an instruction
on criminal trespass to a vehicle because there was not sufficient evidence to entitle defendant to
such an instruction.
¶ 36 Whether a charged offense includes another as a lesser included offense is a question of
law, we review de novo. People v. Thomas, 374 Ill. App. 3d 319, 323 (2007). “A defendant is
entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could
rationally find the defendant guilty of the lesser offense yet acquit him or her of the greater.” Id.This court must first determine if an uncharged lesser included offense exists, then we may
examine the evidence produced at trial. People v. Kolton, 219 Ill. 2d 353, 361 (2006). “Under the
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charging instrument approach, an offense may be deemed a lesser-included offense even [if] every
element of the lesser offense is not explicitly contained in the indictment, as long as the missing
element can be reasonably inferred.” Id. Whether a particular offense is a lesser included of another
is a determination to be made on a case-by-case basis using the factual description of the charged
offense in the indictment. Id. “A lesser offense will be ‘included’ in the charged offense if the
factual description of the charged offense describes, in a broad way, the conduct necessary for the
commission of the lesser offense and any elements not explicitly set forth in the indictment can
reasonably be inferred.” Id.¶ 37 Possession of a stolen vehicle is defined as:
“(1) A person not entitled to the possession of a vehicle or essential part of a
vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have
been stolen or converted. Knowledge that a vehicle or essential part is stolen or
converted may be inferred: (A) from the surrounding facts and circumstances,
which would lead a reasonable person to believe that the vehicle or essential part is
stolen or converted; or (B) if the person exercises exclusive unexplained possession
over the stolen or converted vehicle or essential part, regardless of whether the date
on which the vehicle or essential part was stolen is recent or remote;* * * ” 625
ILCS 5/4-103(a) (West 2018)
¶ 38 Criminal trespass is defined as follows:
“(a) A person commits criminal trespass to vehicles when he or she knowingly
and without authority enters any part of or operates any vehicle, aircraft,
watercraft or snowmobile.
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(b) Sentence. Criminal trespass to vehicles is a Class A misdemeanor.” 720 ILCS
5/21-2 (West 2018)
¶ 39 Here, the State concedes that criminal trespass to a vehicle has been recognized as the
lesser included offense of possession of a stolen vehicle by this court. Further, based on the
indictment, the factual description of the charged offense of possession of a stolen vehicle broadly
describes the conduct necessary for the lesser offense of criminal trespass to a vehicle. Thomas,
374 Ill. App. 3d at 323. The indictment stated that defendant committed the offense of possession
of a stolen motor vehicle in that defendant, by being in possession of a motor vehicle, possessed
said vehicle knowing it to be stolen or converted. This language contained in the indictment for
possession of a stolen vehicle plainly and clearly contains the main outline or broad foundation of
the offense of criminal trespass to a vehicle. Although the charged offense did not set forth the
element of entry, which is required for criminal trespass to a vehicle, that element can be
reasonably inferred. Id. Having determined that criminal trespass to a vehicle is an uncharged
lesser included offense of the charged offense of possession of a stolen vehicle, we now turn to the
evidence. Kolton, 219 Ill. 2d at 361.
¶ 40 Jury instructions are intended to “provide the jury with correct legal rules that can be
applied to the evidence to guide the jury toward a proper verdict.” People v. Lovejoy, 235 Ill. 2d
97, 150 (2009). “In a criminal case, the trial court is required to properly instruct the jury on the
elements of the offense, the burden of proof, and the presumption of innocence.” Id. “When
determining whether a defendant is entitled to a jury instruction on a lesser included offense, the
trial court is to consider whether there is some evidence in the record that, if believed by the jury,
will reduce the crime charged to a lesser offense.” People v. Eubanks, 2019 IL 123525, ¶ 72.
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“When the court determines that there is insufficient evidence to justify the giving of a lesser
included offense instruction, the proper standard of review is abuse of discretion.” Id.¶ 41 The trial court concluded that no evidence presented at trial demonstrated that a criminal
trespass to a vehicle occurred because defendant was present when the car was taken by force, got
in the car, and two days later was caught driving the car. However, the State’s evidence also
demonstrated that defendant entered the vehicle without authority in what defendant described to
Freitag as an attempt to prevent the car from being stolen and to later return it to the owner.
Defendant told Freitag that the vehicle that was left running and as the man on the phone walked
away from the vehicle, he saw a group of people going towards it: so, he jumped in to keep them
from taking it. Defendant told Freitag that he drove away but returned to the area in an attempt to
find the man who he saw walk away from the vehicle that night. He continued to return to the area
until he was stopped by the police. Defendant told Freitag that he did not see an altercation between
anyone. Under the defendant’s account as to what had happened, no one had stolen the vehicle,
therefore, he was not in known possession of a stolen vehicle. This account, if believed by the jury,
could also be considered criminal trespass to a vehicle. Thus, we must conclude that defendant
was entitled to a jury instruction of the lesser included offense, because there was some evidence
that, if believed by the jury, would result in a lesser included offense. Eubanks, 2019 IL 123525,
¶ 72.
¶ 42 B. Plain Error
¶ 43 Generally, in order to preserve an issue on appeal, defendant must raise an objection at trial
and preserve it in a posttrial motion. People v. Bui, 381 Ill. App. 3d 397, 405 (2008). Failure to
preserve an alleged error for review is a procedural default. People v. Rivera, 277 Ill. App. 3d
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811, 818 (1996). Defendant acknowledges his remaining claims have not been preserved and
seeks to have the remaining issues considered under the plain error doctrine.
¶ 44 Under the plain error doctrine, issues not properly preserved can be considered by a
reviewing court. Plain error review is appropriate under either of two circumstances: “(1) where
the evidence is so closely balanced, so as to preclude argument that an innocent person was
wrongfully convicted; or (2) where the alleged error is so substantial that it affected the
fundamental fairness of the proceeding, and remedying the error is necessary to preserve the
integrity of the judicial process.” Bui, 381 Ill. App. 3d at 406. Prior to invoking the plain error
doctrine, it is important to determine if any error actually occurred. Id.¶ 45 B. Sentencing
¶ 46 Defendant contends that he should not have been sentenced under the mandatory Class X
sentencing statute because section 5-4.5-95(b) (730 ILCS 5/5-4.5-95(b) (West 2018)) of the
Unified Code of Corrections (Code) considers whether the qualifying convictions would now be
classified as Class 2 or greater felonies. Defendant contends his 1994 offense for aggravated
discharge of a firearm, which the trial court here used as a predicate offense, would now be under
the exclusive jurisdiction of the juvenile court and would not be classified as a felony conviction
due to subsequent amendments made to the statute.
¶ 47 Defendant contends that in 2013, the legislature revised the Juvenile Court Act (Act) to
raise the maximum age for juvenile jurisdiction from 16 to 17 for offenses that were not subject to
automatic transfer. See Pub. Act 98-61 (eff. Jan 1, 2014) (amending 705 ILCS 405/5-120 (West
2018)). Additionally, under the amendments of 2016, defendants 15 years old and older accused
of committing a forcible felony in furtherance of an illegal gang activity and having a prior
adjudication or conviction, would presumptively be transferred out of juvenile court. See Pub. Act
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99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-805(2)(a) (West 2018)). Defendant
maintains he would not have been subject to such a transfer. Even though defendant was charged
with aggravated discharge of a firearm and attempted murder, defendant had no priors, and it was
a domestic matter, not in furtherance of any gang activity. These conditions, defendant contends
make it certain that his previous conviction would not now be classified as a Class 2 felony or
greater. Defendant acknowledges this claim was not raised below and seeks this court to review
the claim under the plain error doctrine. Defendant contends that whenever an improper sentencing
determination is made, it affects substantial rights and falls under the second prong of plain error,
making the error egregious.
¶ 48 The State contends that defendant forfeited this claim by not raising it previously, and that
no error occurred that would warrant plain error review by this court. They argue that defendant’s
1994 conviction for aggravated discharge of a firearm should not be excluded from the trial court’s
consideration of Class X sentencing because it was a Class 1 felony in 1994 and remains one today,
citing 720 ILCS 5/24-1.2(a)(2) (West 1994) and 720 ILCS 5/24-1.2(a)(2) (West 2018). Further,
the State contends that the changes made to the Juvenile Act are prospective only and not
retroactive. The issue is not whether defendant would now be convicted of the qualifying offense
but whether he was previously convicted of a qualifying offense citing Fitzsimmons v. Norgle, 104
Ill. 2d 369 (1984) as support. Therefore, the State concludes that this court should reject
defendant’s argument under the statute’s plain language.
¶ 49 The issue of statutory construction is a question of law, which we review de novo. People
v. Taylor, 221 Ill. 2d 157, 162 (2006). The statute in question should be looked at in its entirety,
encompassing the subject it addresses and the legislature’s objective in enacting it. Id. Our inquiry
must begin with the language itself; this is the most reliable indicator of the legislature’s intent. Id.-16-
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“When the language of a statute is clear, it must be applied as written without resort to further aids
or tools of interpretation.” Id. We cannot remedy an apparent legislative oversight by rewriting a
statute in any way that is inconsistent with the statute’s clear and unambiguous language. Id. Only
when the statute is ambiguous may a court consider other tools to help determine the meaning. Id.¶ 50 The statute at issue here is section 5-4.5-995(b) of the Code which states, in pertinent part,
the following:
“(b) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2
felony, except for an offense listed in subsection (c) of this Section, after having twice been
convicted in any state or federal court of an offense that contains the same elements as an
offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as
a Class 2 or greater Class felony, except for an offense listed in subsection (c) of this
Section, and those charges are separately brought and tried and arise out of different series
of acts, that defendant shall be sentenced as a Class X offender. * * * ” 730 ILCS 5/5-4.5-
95(b) (West 2018).
¶ 51 This court has consistently held that the language of this statute is “clear and
unambiguous,” therefore its “focus is on the elements of the prior offense.” People v. Foreman,
2019 IL App (3d) 160334, ¶ 46. Since the statute is unambiguous, we need not consider the
legislative history. Id. at ¶ 43. Additionally, we have held that a previous conviction cannot be
used as a predicate offense under section 5-4.5-95(b) if it “would have been resolved with
delinquency proceedings in juvenile court rather than criminal proceedings.” People v. Miles, 2020
IL App (1st) 180736, ¶ 11. Therefore, we agree with defendant, had his 1994 conviction of
aggravated discharge of a firearm, been committed after the 2016 amendment, it would have been
resolved in juvenile court instead of the criminal courts because he was only 17 years old. He
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would not have been subject to automatic transfer, and the offenses he was charged with were not
offenses where a presumptive transfer would occur. See 705 ILCS 405/5-120 (West 2018) and 705
ILCS 405/5-130(1)(a) (West 2018). The 1994 conviction is not an offense that is an “offense now
* * * classified in Illinois as a Class 2 or greater Class felony.” 730 ILCS 5/5-4.5-95(b) (West
2018). The State’s brief asks this court to reframe the statute by arguing that the question should
be “whether he was previously convicted of a qualifying offense.” It is clear from the statute that
the words “now classified” requires the court to sentence a defendant according to the current
classifications at hand. Had the legislature included the term previously, in addition to “now”, it
would have expanded the scope of classifications that could have been used as predicate offenses
for Class X sentencing. However, the limited nature of “now” appears to demonstrate that the
legislature intended to only include that classification for sentencing.
¶ 52 The State’s reliance on Fitzsimmons, is unpersuasive. 104 Ill. 2d 369. This court has
previously held that Fitzsimmons is not analogous to the case at hand where “the corresponding
indication of the legislature's intent, were not present.” People v. Williams, 2020 IL App (1st)
190414, ¶ 20. In Fitzsimmons, the supreme court was interpreting a different sentencing statute
and was not facing the statutory language included in section 5-4.5-95(b). Additionally, the court
at that time did not have the amendments to the Act as we do now which make it clear that the
amendment to the Act “provided some indication that the legislature intended to treat minors who
commit certain crimes differently from adults charged with those crimes.” Id. Therefore, there was
nothing for the courts to consider that would have made their predicate offenses subject to juvenile
jurisdiction instead of criminal proceedings as we now have.
¶ 53 We acknowledge the concern of our dissenting colleague; however, we disagree with the
dissent’s findings. The dissent finds that defendant abandoned his intent to return the vehicle
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because he had a car in the shop. However, the evidence demonstrated, through Freitag’s
testimony, that defendant was found near the scene of the crime. This bolstered defendant’s
statement to Freitag that he kept returning to the scene of the crime in an attempt to return it. He
did tell Freitag that having the car was helpful but never indicated that he abandoned his efforts to
find the owner. Whether or not this is story is credible is not a part of the analysis. The dissent
cites to McDonald partially, which states “defendant is entitled to a jury instruction on a lesser-
included offense when there is some evidence in the record that, if believed by a jury, will reduce
the crime charged to a lesser offense.” 2016 IL 118882. ¶ 25. However, McDonald also held that,
“the appropriate standard for determining whether a defendant is entitled to a jury instruction on a
lesser-included offense is whether there is some evidence in the record that, if believed by the jury,
will reduce the crime charged to a lesser offense; not whether there is some credible evidence.”
Id. The testimony provided by Freitag produced some evidence that if believed by a jury could
reduce the crime of a lesser-included offense.
¶ 54 Based on the aforementioned findings, we conclude that an error did in fact occur with
regard to sentencing. People v. Bui, 381 Ill. App. 3d 397, 405 (2008). Additionally, we find that
such a sentencing error was so egregious as to deny defendant a fair sentencing hearing, thus
satisfying the second prong of plain error. See People v. Polk, 2014 IL App (1st) 122017, ¶ 15. An
additional term of years added to a defendant’s sentence because the wrong sentencing scheme
was used is an error so substantial that we must correct it in order to preserve the integrity of the
judicial process. Bui, 381 Ill. App. 3d at 406.
¶ 55 C. Closing Arguments
¶ 56 Defendant contends that the State committed reversible error when arguing to the jury that
the law prohibited officers from recording defendant’s statement to the police and that defendant
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did not give the police permission to record him. This statement was a misstatement of fact and
law that significantly undermined defendant’s attack on Freitag’s testimony regarding defendant’s
statement to him. Defendant’s theory was that the failure to record defendant’s statement was a
form of police misconduct. The State made the misstatements during their rebuttal; defendant’s
objection was overruled, leaving defendant without an opportunity to correct the misstatements of
law and fact. Defendant acknowledges that he did not preserve this objection in a post-trial motion
and seeks for this court to review the claim under the plain error doctrine, or in the alternative,
ineffective assistance of counsel for failing to preserve and argue the error in post-trial
proceedings.
¶ 57 The State contends that defendant forfeited this claim by not including it in a post-trial
motion and no error occurred that would warrant plain error review by this court. The State argues
that their comments during closing arguments were properly based on the evidence and reasonable
inferences therein and were invited by defense counsel arguments. The State was responding to
remarks made by defense counsel that defendant’s statement was not recorded by Freitag. The
State intended to clarify to the jury that Freitag was not required to video record defendant’s
statement pursuant to 725 ILCS 5/103-2.1(b),(b5) (West 2018), and could not do so without
seeking defendant’s permission. The State contends that the offense of possession of a stolen
vehicle is not one of the enumerated offenses requiring electronic recording of a defendant’s
custodial statement.
¶ 58 The State provided a substantive argument of the proper standard of review within their
footnotes, which this court has previously held is improper. Technology Solutions Co. v. Northrop
Corp., 356 Ill. App. 3d 380 (2005). However, the footnotes contained in the State’s response are
not excessive. Therefore, we decline to disregard them. The State contends that the proper standard
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of review is abuse of discretion, which has been determined recently by our supreme court in
People v. Jackson, 2020 IL 124112, ¶ 83. We agree that Jackson is controlling, however, under
either standard a reversal is not warranted. Jackson held that, “[a] reviewing court will find
reversible error only if the defendant demonstrates that the remarks were improper and that they
were so prejudicial that real justice was denied, or the verdict resulted from the error.” Id. ¶ 83.
¶ 59 Prosecutors are given a wide latitude during opening statements and closing arguments.
People v. Nicholas, 218 Ill. 2d 104, 121 (2006). “In reviewing a challenge to remarks made by the
State during closing argument, the comments must be considered in the context of the entire
closing statements of the parties.” People v. Williams, 192 Ill. 2d 548, 573 (2000). Even if the
statement “exceeds the bounds of proper argument, the verdict must not be disturbed unless it can
be said that the remark caused substantial prejudice to the defendant.” Id. Additionally, a
prosecutor may respond to comments made by defense counsel that invite a response. People v.
Sykes, 2012 IL App (4th) 111110, ¶ 47. However, a prosecutor may not misstate the facts or argue
facts not in evidence. People v. Cruz, 2019 IL App (1st) 170886, ¶ 41.
¶ 60 In closing, defense counsel argued that the videotape was missing because of misconduct.
In the State’s rebuttal closing argument the prosecutor responded to this theory by stating,
“His statement isn't recorded. The police didn't record his statement because they followed
the law. Detective Freitag showed you the crime that he was charged with. That’s not a
crime that they can video record the Defendant. They can't just take out a camera and start
recording him. * * * ”
Section 5/103-2.1(b), (b-5), provides when statements may be used as evidence, each respective
offense listed requires recording. However, the statement made by the prosecutor indicated that
the detectives were prohibited from videotaping because it was not an enumerated offense, making
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the action of videotaping defendant unlawful. This is not what that specific statute provides, and
the State has not provided any authority that expresses this.
¶ 61 Additionally, the prosecutor stated,
“[a]nd he didn't give his permission to be recorded. So, no, there isn't a recording of that,
because the police followed proper procedures, and they did their job that day. The reason
Emmanuel was recorded was because he's not charged with a crime, he's the victim and.
guess what? He consented. He circled, on the form, I consent to being video recorded. I
consent to being audio recorded. That's why you have that recording of Emmanuel. * * * ”
This statement makes it appear that defendant’s refusal to consent was the reason the statement
was not recorded. Together these comments were misleading.
¶ 62 Although we agree with defendant that these statements were improper, we must determine
if they were so prejudicial as to deny real justice or if the verdict resulted in error. Jackson, 2020
IL 124112, ¶ 83. The State’s misstatements were made amongst a lengthy closing argument but
were not the focus of the argument. Instead, the argument was focused on the entirety of the case.
The jury was admonished before and after closing arguments that the arguments were not evidence
and if something was said that did not match the evidence, they should disregard it. At trial, Freitag
testified that he never gave defendant the option of being recorded. Freitag also noted that this was
not the type of case where they videotape defendants who are in custody. Therefore, based on the
limited argument made, the evidence being available to clarify those statements, and the trial courts
consistent admonishments that the statements were not evidence, we find the statements were not
so prejudicial that real justice was denied or that the jury's verdict may have resulted from the
error. Id.-22-
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¶ 63 Since we have held that this did not result in prejudice, defendant's alternate claim of
ineffective assistance of counsel necessarily fails. People v. Clendenin, 238 Ill. 2d at 317-18.
Furthermore, we must also reject his request that we review this claim under plain error review
because he has failed to show an error existed. People v. Bui, 381 Ill. App. 3d 397, 406 (2008).
¶ 64 CONCLUSION
¶ 65 We find that the trial court erred in refusing the jury instruction for criminal trespass to a
vehicle where there was some evidence presented, although by the State, that if believed by a jury,
could have resulted in a conviction for that lesser included offense. We further find that defendant
was improperly sentenced as a Class X offender. Nevertheless, while we agree that the comments
made by the prosecutor were improper, they were not so prejudicial to defendant that real justice
was denied or that the jury verdict may have resulted in error. For these reasons, we vacate
defendant’s conviction and sentence of possession of a stolen vehicle and remand for a new trial.
If the new trial results in conviction, the court shall not consider the 1994 aggravated discharge of
a firearm conviction for Class X sentencing.
¶ 66 Vacated and remanded.
¶ 67 JUSTICE HARRIS, dissenting:
¶ 68 I agree with the majority that defendant was improperly sentenced as a Class X offender,
and with the finding that the prosecutor’s improper comments were not so prejudicial to defendant
that the jury verdict may have resulted in error. However, I disagree with the determination that
the court erred in refusing to instruct the jury on the lesser-included offense of criminal trespass.
¶ 69 There is no authority that intent to permanently deprive is an element of the offense of
possession of a stolen motor vehicle. People v. Washington, 184 Ill. App. 3d 703, 708 (1989).
However, the intent to permanently deprive element may come into play where the defendant was
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the alleged thief who stole the car. See People v. Cozart, 235 Ill. App. 3d 1076, 1081 (1992); see
also People v. Pollards, 367 Ill. App. 3d 17, 23 (2006) (finding that where a conviction for
possession is predicated on possession by the same person who committed the theft, and his intent
was not clearly established by the evidence, jury instructions that define theft as having the intent
to permanently deprive may be required). If it was the defendant who stole the vehicle, he could
be convicted of possession by showing he possessed the vehicle because “defendant would have
to know he had stolen or converted” the vehicle. People v. Cramer, 85 Ill. 2d 92, 100 (1981). It
follows that if the defendant could show his mental state was inconsistent with that required for
theft, he could not be convicted of possession of a stolen motor vehicle. Washington, 184 Ill. App.
3d at 708.
¶ 70 Defendant contends that the State’s theory at trial was that he stole the Udoh’s Nissan. He
argues that his mental state was inconsistent with that required for theft because he took the vehicle
only to keep others from stealing it and intended to return the vehicle to the owner. However,
whether defendant intended to steal the Nissan when he took the car became a non-issue once he
kept the vehicle without authorization and without manifesting an intent to return it. “[T]he intent
to deprive an owner of his property may be inferred simply from the act of taking another's
property. Likewise, it may be inferred from the lack of evidence of intent to return the property or
to leave it in a place where the owner could safely recover it.” People v. Adams, 161 Ill. 2d 333,
343–44 (1994).
¶ 71 Although defendant said that he only took the Udoh’s vehicle to keep others from stealing
it, and he intended to return the vehicle, the evidence showed otherwise. Defendant was found
driving the vehicle more than a day after the incident. He admitted that he could have taken the
vehicle to the police, but he did not. He could have also taken other measures, such as leaving the
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car at the place where he last saw Udoh or searching for information in the car that would identify
the owner. He did not do so. Rather, defendant explained that he kept the Udohs’ vehicle because
his car was in the shop. Defendant, however, did not have their permission to use the vehicle. The
evidence at trial thus showed an intent to deprive the Udohs of their property and contradicted
defendant’s claim that he intended to return the property to its rightful owner.
¶ 72 When there is a request for an instruction on a lesser-included offense, the court must
examine the evidence adduced at trial to determine whether it rationally supports a conviction for
the lesser-included offense. People v. Phillips, 383 Ill. App. 3d 521, 540 (2008). Defendant is
entitled to a jury instruction on a lesser-included offense when there is some evidence in the record
that, if believed by a jury, will reduce the crime charged to a lesser offense. People v. McDonald,
2016 IL 118882. ¶ 25. Given the lack of evidence establishing defendant’s intent to return the
vehicle or leave it in a place where the Udohs could safely recover it, the trial court did not abuse
its discretion in refusing to give a jury instruction on criminal trespass. See Id. ¶ 57. Therefore, I
respectfully dissent.
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