2020 IL App (1st) 172190-U

No. 1-17-2190 

March 31, 2020 

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party 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,

Plaintiff-Appellee, 

 v. 

DELVON MCCUNE, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of 

Cook County. 

No. 16 CR 15045 

Honorable 

Vincent M. Gaughan, 

Judge, presiding. 

JUSTICE WALKER delivered the judgment of the court. 

Justices Hyman and Pierce concurred in the judgment. 

ORDER

¶ 1 Held: We reverse defendant’s conviction for attempt residential burglary and remand for 

a new trial where the trial court’s improper Rule 431(b) admonitions were plain 

error because the evidence was closely balanced. 

¶ 2 Following a jury trial, defendant Delvon McCune was found guilty of attempt residential 

burglary (720 ILCS 5/8-4 (West 2016), 720 ILCS 5/19-3(a) (West 2016)) and sentenced to 75 

months’ imprisonment. He appeals arguing that the trial court committed plain error because it

failed to properly instruct the jury pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 
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2012) and the evidence was closely balanced. We reverse the conviction and remand for a new 

trial.

¶ 3 BACKGROUND

¶ 4 During jury selection, the court informed the venire that a “defendant is not required to 

prove his innocence, nor is he required to present any evidence on his own behalf.” The court did 

not ask the venire any questions at this juncture. 

¶ 5 The court then explained that (1) all defendants are “presumed to be innocent”; (2) the 

burden of proof was beyond a reasonable doubt; (3) the State has the burden of proof; and (4) a 

defendant has the right to testify or not testify, and his decision to not testify cannot be held against 

him. Regarding each of these principles, the court asked if the potential jurors had any “problems” 

accepting and “applying” them. No venirepersons responded. 

¶ 6 At trial, Hanh Chi Do testified that she lived in a second-floor apartment on the 800 block 

of West Aldine Avenue. On September 19, 2016, sometime after 7 p.m., she heard a “big bang” 

coming from the bedroom where her balcony is located. She entered the bedroom, turned on the 

lights, and noticed that the screen door to the balcony was open. This was unusual because she 

typically leaves that door closed. Do turned off the lights and went to the window, where she saw 

someone on her neighbor’s porch. She identified defendant as that person in court. Do had never 

seen defendant before, did see defendant on her balcony, and had not given him permission to be 

on her balcony. She ran to the kitchen and called the police, who arrived within three minutes. Do

told the officers what happened.

¶ 7 Shortly thereafter, while standing on her balcony, Do saw defendant walking in the alley 

behind her home with an officer. She informed another officer that she recognized defendant as 
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the man who was on her neighbor’s porch. Do examined her balcony for damage. The screen door 

was broken, and she found an indentation in the frame of the balcony door. The door did not have 

any marks the last time she saw it, which was earlier that day or the day before. Do also had

gardening tools on her balcony that she kept in a bucket. After she identified defendant to the 

officers, they returned a “scoop” and gloves that were in the bucket the last time she saw them.

The prosecutor showed Do People’s Exhibits 1 through 9, which she identified as photographs

depicting her apartment, balcony, and the scoop and bucket immediately following the incident.

She identified People’s Exhibits 3 through 6 as depicting the new damage on her balcony door. 

¶ 8 On cross-examination, Do acknowledged that she was last on the balcony 12 to 24 hours

prior to the incident, and she did not go on the balcony until officers were with her. It had been at 

least a day since she used the gloves and scoop. 

¶ 9 Chicago police officer Jamie Ada Maldonado testified that she responded to the incident 

at Do’s home on September 19, 2016, with her partner Officer Mohammed Ali. She parked in front 

of the building and went to Do’s apartment while Ali went to the alley. Over her radio, she learned 

that Ali had detained a suspect. She went to the alley and saw Ali with the suspect, whom she 

identified as defendant in court. Do identified defendant and told Maldonado that gloves and a 

small shovel were missing from the balcony. Maldonado then searched defendant’s backpack and 

recovered the items Do had described. 

¶ 10 On cross-examination, Maldonado testified that defendant told Ali that he climbed Do’s 

balcony to “smoke a blunt.” Maldonado intended to conduct a show-up procedure with Do, but 

decided not to after Do volunteered that she saw defendant in the alley with two officers and
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recognized him as the man on her neighbor’s porch. While in the apartment, Maldonado saw what 

she believed were pry marks on Do’s balcony door, but she did not know what caused them. 

¶ 11 Detective Cheryl Bronkema testified that she responded to the scene with her partner 

Detective Robert Rose, spoke to Do, and inspected the apartment. She learned that a suspect had 

been detained, and later interviewed that suspect, whom she identified as defendant in court. The 

interview occurred at the Area North police station. After Rose Mirandized defendant, he initially 

stated he went to Do’s balcony to “smoke a blunt.” Then, he admitted that he took “a trowel and 

some gloves” from the balcony because “his wife had a green thumb.” He pried open the screen 

door with the gardening tool and attempted to pry open the balcony door, but stopped and “jumped 

off” the balcony after Do turned on the light. When asked how he made the “eight-foot jump” from 

the balcony, defendant said he was “blessed with good feet.” 

¶ 12 Bronkema ordered an evidence technician to investigate Do’s apartment. The technician 

took pictures of the balcony. Bronkema did not order the technician to recover fingerprints because 

defendant told Bronkema that she knew “what [he was] going to do with” the gloves, which 

Bronkema understood to mean that defendant wore the gloves to avoid leaving fingerprint 

evidence. On cross-examination, Bronkema admitted that defendant’s statement was not

memorialized in writing or recorded, though there were rooms at Area North that had recording 

equipment. 

¶ 13 Defendant testified that he climbed onto the balcony to “roll up a blunt” in a “hidden” 

place. While there, he stole gardening tools and gloves because he is “clepto [sic].” He “smoked” 

on the balcony for 15 minutes, then jumped down to the alley. Officers arrived moments later and

apprehended him. The officers asked defendant if he had tried to break into a house, which he 
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denied. Defense counsel asked, “what did you tell the police when you went to the police station?” 

Defendant answered that he “told them that I wanted to smoke and that’s why I was back there.” 

Defendant added that the officers asked, “[w]hy are these tools and *** gloves in your backpack 

and I told them.” Defendant testified that he did not attempt to break into the apartment or pry 

open a door. He acknowledged prior convictions for residential burglary and aggravated robbery. 

¶ 14 On cross-examination, defendant said he was with his friend Mike prior to climbing the 

balcony but left because his friends do not like it when he smokes. He denied jumping onto a 

nearby patio. Defendant agreed that there were other places to hide in the alley, including some 

that would have been easier to reach than Do’s balcony. He further agreed that he did not use the 

balconies of two other apartments in which lights were on but denied jumping off Do’s balcony 

because someone turned on the lights. Defendant claimed to have a “club foot,” but was still able 

to jump eight feet off the balcony.

¶ 15 The jury found defendant guilty of attempt residential burglary. The court denied 

defendant’s motion for judgment notwithstanding the verdict or a new trial. After a hearing, the 

court sentenced defendant to 75 months’ imprisonment and denied his motion to reconsider 

sentence.

¶ 16 ANALYSIS

¶ 17 On appeal, defendant contends that the trial court improperly admonished the venire under 

Rule 431(b). Specifically, he argues that the court (1) failed to ask the venire any questions about 

the principle that he did not have to introduce evidence, and (2) failed to inquire whether the venire 

“understood” any of the four principles enumerated in Rule 431(b). Defendant acknowledges that 

he did not preserve this issue below and asks this court to exercise plain error review. 
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¶ 18 The plain error doctrine allows for consideration of unpreserved errors where a “clear or 

obvious” error occurred at trial and (1) “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,” or (2) “that error is so serious that it affected the fairness of the defendant’s trial and 

challenged the integrity of the judicial process, regardless of the closeness of the evidence.” 

(Internal quotation marks omitted). People v. Sebby, 2017 IL 119445, ¶ 48. Defendant argues that 

the first prong applies. We must first determine whether a clear or obvious error occurred. Id. ¶ 49. 

¶ 19 Rule 431(b) requires a trial court to ask “each potential juror, individually or in a group” if 

they understand and accept that (1) the defendant is presumed innocent, (2) the State must prove 

that the defendant is guilty beyond a reasonable doubt, (3) the defendant does not have to introduce 

evidence on his behalf, and (4) if the defendant does not testify, it cannot be held against him. Ill. 

S. Ct. R. 431(b) (eff. July 1, 2012). The court must inquire whether the venire both understands 

and accepts each of the four principles. See People v. Belknap, 2014 IL 117094, ¶ 46 (“the trial 

court’s failure to ask whether the jurors understood the principles constitutes error alone”). 

¶ 20 Here, the trial court instructed the venirepersons that defendant did not have to present 

evidence but made no inquiry as to whether they understood and accepted this principle. 

Additionally, the trial court did not ask whether the venire understood any of the four principles, 

only whether they had any problems accepting and applying the principles. Thus, the court 

committed clear error. 

¶ 21 Having determined that the court committed clear error, we must now decide whether the 

evidence at trial was closely balanced. Sebby, 2017 IL 119445, ¶¶ 50-52. When determining 

whether evidence is closely balanced, the reviewing court must conduct a “commonsense 
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assessment” of the entire record, including evidence on the elements of the charges as well the 

witnesses’ credibility. Id. ¶ 53. The issue “does not involve the sufficiency of close evidence but 

rather the closeness of sufficient evidence.” Id. ¶ 60. The defendant has the burden to show that 

“the evidence is closely balanced,” but “ha[s] no burden to present any evidence or to testify 

himself at trial.” People v. Piatkowski, 225 Ill. 2d 551, 567 (2007). If a defendant chose to testify, 

however, the reviewing court can “consider his testimony when evaluating the closeness of the 

evidence.” People v. Anaya, 2017 IL App (1st) 150074, ¶ 99. A defendant need not make any 

additional showing regarding prejudice in first-prong cases because “[t]he only question ***, once 

clear error has been established, is whether the evidence is closely balanced.” Sebby, 2017 IL 

119445, ¶ 69. 

¶ 22 In cases where there is only testimonial evidence and each side offers credible accounts, 

the evidence may be closely balanced. Id. ¶ 63. A case is not automatically closely balanced, 

however, because a defendant presented his own version of events; instead, the reviewing court 

should consider the credibility of the defendant’s version, and any extrinsic evidence, in making 

its determination. Id.; see also People v. Phagan, 2019 IL App (1st) 153031, ¶ 141; People v. 

Lopez, 2012 IL App (1st) 101395, ¶ 88. 

¶ 23 Relevant here, a defendant is guilty of attempt residential burglary if he takes a substantial 

step towards entering the “dwelling place of another,” “knowingly and without authority,” and

with the “intent to commit therein a felony or theft.” 720 ILCS 5/8-4 (West 2016); 720 ILCS 5/19-

3(a) (West 2016).

¶ 24 At trial, Do testified that she saw a figure on her balcony, then moments later saw defendant

on her neighbor’s porch. Both Do and Maldonado testified that Do’s balcony door had pry marks. 
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Do testified that the marks were not there 12 to 24 hours before the incident, and the marks were 

also confirmed by photographic evidence. When officers arrested defendant, he had gardening 

tools in his backpack that belonged to Do. Bronkema testified that defendant gave a statement in 

which he admitted that he took the tools and used one of them to attempt to pry Do’s balcony door

open, only stopping when she turned on the bedroom lights. Defendant testified that he climbed 

on Do’s balcony to smoke cannabis, stole the items, and then returned to the alley. He maintained 

that he never attempted to enter Do’s apartment and denied telling Bronkema that he tried to pry a 

door open. 

¶ 25 After a commonsense assessment, we find that the evidence at trial was closely balanced. 

This matter turned on a credibility determination. Do testified that the pry marks were not present 

before the incident. Defendant testified that he climbed on the balcony and took the tools, but never 

attempted to enter Do’s apartment. “Given these opposing versions of events, and the fact that no 

extrinsic evidence was presented to corroborate or contradict either version,” the jury’s ruling here

“necessarily involved [the jury’s] assessment of the credibility” of the witnesses. People v. Naylor, 

229 Ill. 2d 584, 607 (2008). Therefore, the evidence was closely balanced and the trial court’s 

improper Rule 431(b) admonitions constituted plain error. Id. at 608; Sebby, 2017 IL 119445, 

¶¶ 63, 72. 

¶ 26 CONCLUSION

¶ 27 Though the evidence was closely balanced, we find that it was sufficient to sustain the 

jury’s verdict, and a retrial presents no double jeopardy issue. See Piatkowski, 225 Ill. 2d at 567. 

Because the trial court committed plain error in its Rule 431(b) admonitions, defendant’s 

conviction is reversed and the case is remanded to the circuit court for further proceedings. 
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¶ 28 Reversed and remanded.