2022 IL 126830 

IN THE 

SUPREME COURT 

OF 

THE STATE OF ILLINOIS 

(Docket No. 126830) 

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 

JEREMY MUDD, Appellant. 

Opinion filed January 21, 2022. 

JUSTICE CARTER delivered the judgment of the court, with opinion. 

Chief Justice Anne M. Burke and Justices Garman, Theis, Neville, Michael J. 

Burke, and Overstreet concurred in the judgment and opinion. 

OPINION 

¶ 1 After being convicted of unlawful use of a weapon by a felon (UUWF), 

defendant argued on appeal that comments made in the prosecution’s rebuttal 

closing argument constituted reversible error because they misrepresented the 

evidence and shifted the burden of proof to him. Alternatively, he contended that 
 

 

his trial attorney provided ineffective assistance of counsel by failing to object to 

the State’s rebuttal comments. 

¶ 2 The appellate court upheld defendant’s conviction, concluding that the 

comments did not shift the burden of proof and that they represented “ ‘general 

knowledge, common experience, or common sense’ ” that did not require an 

evidentiary foundation. 2020 IL App (1st) 190252-U, ¶ 23 (quoting People v. 

Jackson, 391 Ill. App. 3d 11, 43 (2009)). While we base our decision on different 

grounds, we affirm the judgment of the appellate court. 

¶ 3 I. BACKGROUND 

¶ 4 In August 2017, defendant Jeremy Mudd was arrested and charged in Cook 

County with UUWF, among other offenses, after police responded to a large 

gathering of people reportedly drinking and playing loud music in a park after 

closing time. At trial, defense counsel’s opening statement established the 

groundwork for challenging the strength of the State’s case due to a lack of testing 

and evidence, informing the jury that 

“[t]here are numerous things that are documentation, things like forensic 

analysis and testing, DNA, gunshot residue, fingerprints, photographs, 

audiovisual recordings. You won’t hear any of that. You won’t hear that the 

officers submitted a gun for fingerprints or that Mr. Mudd’s fingerprint was on 

that firearm. You won’t hear that they submitted for gunshot residue testing, or 

that any gunshot residue was on Mr. Mudd. You won’t hear that any DNA was 

swabbed on that firearm or any DNA was recovered.” 

The State’s evidence was indeed extremely limited. In its case-in-chief, the State 

presented only the testimony of the two police officers involved in defendant’s 

arrest, Gerardo Garcia and Jeremy Rice. 

¶ 5 Officer Gerardo Garcia testified that at about 10:20 p.m. on August 12, 2017, 

he and his partner, along with officers in another squad car, drove to Harding Park 

in Chicago to investigate a report of a large number of people drinking and playing 

loud music. Officer Garcia stated that 40 to 50 people were in the park when he 

arrived. He and an officer from the other squad car, Jeremy Rice, entered the park. 

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Officer Garcia quickly noticed that defendant was holding his hand over a bulge on 

the right side of the waistband of his shorts. As the officers approached, defendant 

started to walk quickly away toward a door in the fence opening into an alley. 

Officer Garcia described the lighting from the nearby streetlights and elevated line 

tracks in the area as good. 

¶ 6 Officer Garcia testified that, when defendant was instructed to stop, he merely 

looked backward and asked, “Who, me?” Still holding the right side of his 

waistband, defendant proceeded down the alley, followed closely by the two 

officers. Officer Garcia was five to eight feet away as defendant approached the 

driver’s side of an unoccupied van parked in the alley. No other vehicles or people 

were in the alley at the time. 

¶ 7 Although Garcia testified that he saw defendant briefly kneel beside the driver’s 

side rear tire, that detail was not included in the incident report. Officer Garcia 

testified that Officer Rice then stopped defendant while Garcia checked the driver’s 

side rear tire and found a gun on top of it. He used his bare hand to pick up the 

weapon, contrary to protocols requiring the use of gloves, because people had 

begun to enter the alley and were yelling. After securing defendant in a squad car, 

Officer Garcia inspected the gun and found a single bullet in the chamber. The 

physical evidence was later submitted to the state crime lab. 

¶ 8 During cross-examination, defense counsel attempted to ask Officer Garcia 

about any fingerprint, DNA, or gunshot residue tests that were run on the gun, but 

the State objected. The trial court sustained those objections. 

¶ 9 Officer Rice then took the witness stand for the State, offering a similar account 

of the events. On entering the park, Officer Rice noticed that defendant had “a bulge 

poking from the right side of his body, also holding his waistband *** an object 

appeared to be sticking out of his shirt.” His testimony of how he followed 

defendant out of the park and into the lighted alley was consistent with Officer 

Garcia’s account. Officer Rice testified that when he “told [defendant] to stop, let 

me talk to you,” defendant turned and said “Who, me?” and continued down the 

alley. That detail was also included in his report. Officer Rice testified that he was 

5 to 10 feet away when he saw defendant approach a parked minivan, drop to one 

knee, and place an object he removed from his waistband onto the driver’s side rear 

tire. His testimony about how a gun was recovered from the tire echoed Officer 

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Garcia’s account. Rice’s testimony about where defendant placed the object he 

removed from his waistband, however, differed somewhat from his grand jury 

testimony. During the grand jury proceedings, Officer Rice answered affirmatively 

when asked, “At the time he placed that weapon onto the ground, was [defendant] 

the only person by the van?” After Officer Rice completed his testimony, the parties 

stipulated to defendant’s prior felony conviction. Defendant did not present any 

witnesses or other evidence. 

¶ 10 During closing arguments, defense counsel pointed out the absence of certain 

evidence from the State’s case. 

“Now, let’s talk about what you don’t have. What you don’t have are 

fingerprints. As far as we know, that gun was never even submitted for testing 

for fingerprints. 

You don’t have DNA. Why? Because as far as we know, that gun was never 

even submitted for DNA. 

You don’t have gunshot residue. Why? Because they never swabbed Mr. 

Mudd for gunshot residue. 

* * * 

Well, you know, Ladies and Gentleman, usually we don’t say, take my word 

for it. We say, don’t take my word for it. Look at this and judge for yourself. 

The problem with the case before you [is] there is no this. You have nothing 

else. And is that really how we want to conduct the criminal justice system in 

this city? Because if it is, we don’t need trials. We don’t need prosecutors, or 

judges, or defense lawyers, or juries. The police can just say, we saw him do it. 

End of story. That’s not how we conduct justice in this city.” 

¶ 11 After emphasizing the lack of any evidence to corroborate the officers’ 

testimony, defense counsel summarized by arguing, “The curtain has been pulled 

back, and all you have are men. *** Men who have nothing, nothing to back up 

what they’re telling you.” 

¶ 12 In its rebuttal closing argument, the State responded by asking the jurors to use 

their “common sense.” It noted that, because no one else was near the van when 

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defendant knelt beside the tire, he was the only person who reasonably could have 

left the gun, making any forensic testing of the weapon unnecessary. 

¶ 13 The following exchange then occurred. The State explained that, 

“And it is our burden of proof, Ladies and Gentleman. It is the State’s 

burden of proof to prove the elements beyond a reasonable doubt. It’s a burden 

we take on every single day. 

DEFENSE COUNSEL: Objection. 

THE COURT: To that line, overruled. 

PROSECUTOR: And we welcome that burden, Ladies and Gentleman. We 

welcome that burden. But both sides have access to the evidence. Both sides if 

they wanted testing to be done can request testing to be done. Both sides.” 

Defense counsel did not object to the latter comments addressing the parties’ ability 

to test the evidence. 

¶ 14 The trial court then provided the jury with its final instructions, including a 

reminder that defendant was “presumed innocent” and that only proof “beyond a 

reasonable doubt that he is guilty” presented by the State could overcome that 

presumption. The court also explained that “[t]he State has the burden of proving 

the guilt of the defendant beyond a reasonable doubt, and this burden remains on 

the State throughout the case. The defendant is not required to prove his innocence.” 

After instructing the jury on the elements of UUWF, the trial court noted again that 

“the State must prove” each one of those elements. After deliberating, the jury 

found defendant guilty of UUWF, and the trial court sentenced him to 51⁄2 years in 

prison. 

¶ 15 In his initial posttrial motion, defendant requested a new trial, but that motion 

did not mention the comments in the State’s rebuttal closing argument. Defendant 

subsequently filed a pro se motion pursuant to People v. Krankel, 102 Ill. 2d 181 

(1984), asserting that his trial attorney committed errors that constituted ineffective 

assistance of counsel. 

¶ 16 At the preliminary Krankel hearing, defendant alleged that counsel erred by not 

requesting that the gun found by the van be tested for DNA and fingerprints. Trial 

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counsel explained that the omission “was trial strategy to argue to the jury that there 

was no DNA or fingerprints recovered from that item. I believe that based on my 

conversations with my client in confidence, that those particular items would have 

hindered the defense rather than helped.” Finding that the legal representation 

defendant received was “very vigorous” and “very effective,” the trial court denied 

his Krankel motion. 

¶ 17 The public defender was then appointed to represent defendant, and he filed a 

supplemental motion for a new trial, asserting, in relevant part, that the trial court 

erred by overruling trial counsel’s objections during the State’s opening statement 

and closing argument and that the State’s rebuttal argument improperly shifted the 

burden of proof to defendant. The motion did not claim, however, that the State’s 

closing argument misstated the evidence at trial. The trial court denied both the 

original and supplemental motions for a new trial. 

¶ 18 On appeal, defendant argued that the State’s rebuttal argument misstated the 

evidence by asserting that he could have requested forensic testing on the gun 

without presenting any supporting testimony. He also claimed that the State’s 

rebuttal argument improperly shifted the burden of proof to defendant. 2020 IL App 

(1st) 190252-U, ¶ 2. The appellate court affirmed defendant’s UUWF conviction 

(id. ¶ 26) after finding that he had not preserved the alleged error (id. ¶¶ 13-17). 

The court determined that it was “a matter of ‘general knowledge, common 

experience, or common sense’ ” that defendant had “access to evidence to be used 

against him ‘to have a test made by his chosen expert.’ ” Id. ¶ 23 (quoting People 

v. Jackson, 391 Ill. App. 3d at 42-43, and People v. Peeples, 155 Ill. 2d 422, 477 

(1993)). The appellate court also concluded that the State’s argument that defendant 

could have requested testing on the gun did not improperly shift the burden of proof. 

Id. ¶¶ 24-25. This court allowed defendant’s petition for leave to appeal from the 

appellate court’s judgment pursuant to Illinois Supreme Court Rule 315 (eff. Oct. 

1, 2019) and Rule 612 (eff. July 1, 2017). 

¶ 19 II. ANALYSIS 

¶ 20 Before this court, defendant raises two issues: (1) whether the claim in the 

State’s rebuttal argument that both sides in the case could have requested testing of 

the evidence requires a reversal of defendant’s UUWF conviction and a remand for 

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a new trial because it misstated the evidence and shifted the burden of proof to 

defendant and (2) alternatively, whether defendant received ineffective assistance 

of counsel when his trial attorney failed to object to the State’s unsupported 

assertion in its rebuttal argument that both parties could have asked for forensic 

testing. 

¶ 21 Before we reach the merits of defendant’s claim that the State’s rebuttal 

argument constituted reversible error, we must first address his failure to timely 

object to the comments that form the basis of this appeal. It has long been Illinois 

law that an issue not accompanied by a contemporaneous trial objection and raised 

in a posttrial motion is forfeited. In the absence of the requisite objections, forfeited 

issues are reviewable on appeal in a criminal case only under the doctrine of plain 

error. People v. Jackson, 2020 IL 124112, ¶ 81. Applying those principles, our 

review is limited to determining whether defendant has shown that the State’s 

alleged rebuttal argument misconduct constitutes plain error. Id. 

¶ 22 Plain error may be demonstrated in one of two ways. To establish first-prong 

plain error, defendant must show that the evidence was closely balanced and that 

the prosecutor’s comments were “clear or obvious” reversible error that changed 

the outcome of the trial. See People v. Johnson, 218 Ill. 2d 125, 143 (2005) (stating 

the relevant standard). To obtain relief under second-prong plain-error principles, 

defendant must prove that the alleged error was serious enough to affect the fairness 

of the trial or to undermine the integrity of the judicial process. Jackson, 2020 IL 

124112, ¶ 81. Because prejudice is presumed when second-prong plain error is 

shown, defendant need not demonstrate prejudice to obtain relief on appeal. People 

v. Sebby, 2017 IL 119445, ¶ 50. To successfully maintain a claim of either first- or 

second-prong plain error, however, a defendant must prove actual error. People v. 

Birge, 2021 IL 125644, ¶ 24. Here, defendant argues for the application of both 

first-prong and second-prong plain error, claims that we will review de novo. Id. 

¶ 23 As defendant notes, the only disputed question at trial was whether he 

knowingly possessed a gun prior to his arrest. Because he believes the results of 

any forensic testing performed on the weapon retrieved from the van would have 

weighed heavily on the jury’s resolution of that question, defendant asserts that the 

State’s rebuttal argument comments were a critical component in the jury’s 

deliberative process and ultimately led to him being found guilty in this case. 

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¶ 24 Initially, defendant argues that the comments were reversible error because they 

were not supported by any trial evidence establishing that both parties could request 

forensic testing. In support of that contention, he cites the appellate court decisions 

in People v. Williams, 333 Ill. App. 3d 204 (2002), People v. Jackson, 2012 IL App 

(1st) 102035, and People v. Nightengale, 168 Ill. App. 3d 968 (1988), as well as 

this court’s opinion in People v. Whitlow, 89 Ill. 2d 322 (1982). 

¶ 25 In Williams, 333 Ill. App. 3d at 214, the prosecution’s theory of the case was 

that Williams shot a woman because he knew he would be declared the father of 

her child in an upcoming paternity hearing and wanted to avoid any child support 

obligation. On appeal, Williams claimed that the State’s closing argument 

improperly imputed that motive to him without first establishing a proper 

evidentiary foundation. Id. at 208. After reviewing the trial record of the State’s 

attempt to obtain evidentiary support for its theory when it cross-examined 

Williams, the appellate court found that the State’s questioning was inconclusive 

and merely assumed the results of the pending paternity tests. Id. at 209. Thus, the 

State’s closing argument was reversible error because it was premised solely on a 

failed evidentiary showing. Without any evidence to substantiate its theory, the 

State could not make that factual argument to the jury. Id. at 214. 

¶ 26 In Jackson, 2012 IL App (1st) 102035, the primary issue at trial was whether 

Jackson knew a gun was present in his car when he was pulled over by the police. 

He consistently maintained that he did not know about the gun, explaining that 

other people had access to the car. Id. ¶ 17. After his conviction, Jackson’s appeal 

centered, in relevant part, on the State’s assertion in its rebuttal closing argument 

that he had told police that he found a gun in the car without offering any evidence 

indicating that he had made that admission. Id. ¶ 18. Jackson also claimed that the 

evidence in the case was closely balanced, with the police and Jackson presenting 

conflicting accounts at trial. The police testified that Jackson attempted to start his 

stopped car and drive away when they tried to arrest him for possession of cannabis 

and failure to have a valid driver’s license. For his part, Jackson’s testimony denied 

that he tried to restart his car and maintained that the police pulled him out of the 

vehicle to arrest him. Id. ¶ 19. 

¶ 27 The appellate court’s review of the record on appeal revealed that the 

conflicting testimony addressing Jackson’s knowledge of the gun was closely 

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balanced and that the State’s rebuttal claim that he admitted finding a gun in the car 

was not supported by any evidence. The court concluded that the State’s 

misstatement of the evidence prejudiced Jackson, and that prejudice was 

exacerbated by Jackson’s inability to correct the misstatement before the jury 

because it arose during the State’s rebuttal closing argument. Consequently, the 

appellate court found the State’s rebuttal argument to be reversible error and 

remanded the case for a new trial. Id. ¶ 20. 

¶ 28 Similarly, the appellate court in Nightengale, 168 Ill. App. 3d at 974-75, 

concluded that the State’s repeated references in closing argument to evidence not 

presented at trial, such as the existence of fingerprint evidence, deprived 

Nightengale of a fair trial. In summarizing the State’s extensive litany of trial errors, 

the appellate court characterized the prosecutor’s conduct as “an open mockery of 

our judicial system and *** totally unprofessional. The repeated disregard of the 

bounds of proper argument and the prosecutor’s conduct was so flagrant and 

purposeful, we can only conclude that it was done for the purpose of prejudicing 

defendant.” Id. at 976. 

¶ 29 In Whitlow, 89 Ill. 2d at 340, this court reviewed Whitlow’s claim that the State 

made prejudicial statements during its closing argument, directly suggesting 

without any supporting evidence, that he had committed theft related to the rental 

on an office space. That claim, however, was refuted by the record on appeal. Id. 

The court concluded that Whitlow was entitled to a new trial because the 

misrepresentations in the State’s closing argument prejudiced him and, combined 

with its numerous other missteps during the proceedings, constituted reversible 

error. Id. at 341. 

¶ 30 The most obvious distinction between this case and the decisions in Williams, 

Jackson, Nightengale, and Whitlow is that those prosecutors’ statements conveyed 

an inaccurate and prejudicial picture of the facts to the jury. In contrast, here the 

remarks in the State’s rebuttal closing argument reflected an accurate and 

straightforward explanation of the relevant law as stated in Illinois Supreme Court 

Rule 412(e) (eff. Mar. 1, 2001). According to Rule 412(e)(ii), the prosecution in a 

criminal case is obliged to “mak[e] available to defense counsel at the time 

specified such material and information, and suitable facilities or other 

arrangements for inspection, testing, copying and photographing of such material 

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and information.” Ill. S. Ct. R. 412(e)(ii) (eff. Mar. 1, 2001). That mandate 

establishes, as a matter of law, that both sides in a criminal proceeding possess the 

same ability to request forensic testing of the evidence. That is precisely the 

message the State conveyed to the jury in its rebuttal argument. 

¶ 31 Unlike in the cases cited by defendant, the State here did not err by 

mischaracterizing the trial evidence. Rather, the State’s rebuttal statements 

accurately reflected the substance of Rule 412(e)’s requirement that both sides are 

able to test the evidence, a purely legal matter, and did not reflect a factual or 

evidentiary misrepresentation. Indeed, it is difficult to imagine how an accurate 

portrayal of the parties’ ability to request forensic testing, as required by Illinois 

law, can be deemed to be unduly prejudicial to defendant. This court has never 

required a factual showing for a legal argument that simply and accurately states 

the relevant procedural law, and we decline to impose that prerequisite now. 

Therefore, we reject defendant’s claim that the State’s rebuttal closing argument 

constituted error. 

¶ 32 Defendant next argues that the State’s rebuttal comments created plain error 

because they improperly shifted the burden of proof to him, citing appellate court 

decisions such as People v. Beasley, 384 Ill. App. 3d 1039 (2008), and People v. 

Jackson, 399 Ill. App. 3d 314 (2010) (Lewis Jackson). After careful review, we are 

not persuaded by that argument. 

¶ 33 In Beasley, the defendant was convicted after unsuccessfully objecting to the 

State’s closing argument because it shifted the burden of proof to him. Beasley had 

previously maintained in his own closing argument that the State’s failure to test 

the evidence for fingerprints was unconscionable. In response, the State suggested 

that, if the failure to request testing of evidence is “unconscionable on the part of 

[the State,] it’s just as unconscionable on the part of the defense. So, if you want 

something tested, you can get it tested. You can’t sit back and say, ‘Well, nobody 

tested it; therefore, the evidence fails.’ ” (Internal quotation marks omitted.) 

Beasley, 384 Ill. App. 3d at 1043-44. 

¶ 34 As the appellate court correctly noted, a criminal defendant has no duty to 

produce evidence at trial, and the State may never shift its burden of proof to a 

defendant. Id. at 1047-48. Consequently, the appellate court rejected the State’s 

claim that Beasley’s closing argument “opened the door” to its remarks by inviting 

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the prosecution to explain why it chose not to conduct evidentiary testing. Id. at 

1048. Because a criminal defendant may never bear the evidentiary burden, the 

court concluded that a defendant’s failure to offer evidence at trial could be never 

properly characterized as “ ‘unconscionable.’ ” Id. 

¶ 35 In holding that the State’s comments improperly shifted the burden of proof, 

the appellate court focused on the State’s condemnation of Beasley’s failure to 

request testing. Id. The trial court’s failure to sustain the defendant’s objections to 

those comments effectively “sanction[ed] an erroneous burden of proof before the 

eyes of the jury,” requiring reversal of the defendant’s conviction and remand for a 

new trial. Id. 

¶ 36 Contrary to the prosecution’s subjective and denigrating commentary in 

Beasley, however, the State’s comments here neither condemned defendant’s 

decision not to test the gun nor subjectively characterized that decision. Its 

comments simply did not reflect the same type of highly negative, and entirely 

subjective, reflection on the defendant’s failure to act that was presented in Beasley. 

Here, the prosecutor simply provided a legally accurate explanation of the 

requirement in Illinois Supreme Court Rule 412(e) (eff. Mar. 1, 2001) that both 

parties possess an equal ability to request forensic testing. The State did not commit 

the type of error that led to the reversal of the defendant’s conviction in Beasley. 

¶ 37 In addition, prior to making the comments cited by defendant, the State’s 

rebuttal argument repeatedly emphasized its retention of the burden of proof in 

every criminal case. Only after expressly enunciating that fundamental principle 

did it add, “But both sides have access to the evidence. Both sides if they wanted 

testing to be done can request testing to be done. Both sides.” The record on appeal 

demonstrates that both parties had previously explained the proper allocation of the 

burden of proof throughout the proceedings, starting with the opening statements 

and continuing through the State’s rebuttal argument to the trial court’s submission 

of the final jury instructions. 

¶ 38 When viewed in the context of the entire trial, the State’s indisputably accurate 

explanation of Rule 412(e) does not support the conclusion that the prosecutor’s 

comments led the jury to believe that the defendant bore any burden of proving his 

innocence at trial. See People v. Nevitt, 135 Ill. 2d 423, 453 (1990) (reviewing the 

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State’s closing argument comment for plain error by examining the context of the 

entire proceeding to determine if the defendant was denied a fair trial). 

¶ 39 Citing the reasoning in Lewis Jackson, 399 Ill. App. 3d at 318-19, defendant 

also argues that the State’s comments were reversible error because it failed to offer 

any evidentiary basis for them. In Lewis Jackson, the defendant claimed that the 

State shifted the burden of proof by “emphasizing” during its closing argument and 

redirect examination of the State’s DNA expert that Jackson had not offered any 

DNA test results. Id. After noting the general bar on prosecutorial comments about 

a defendant’s failure to offer evidence, the appellate court explained that that 

commentary is “not improper” when “a defendant with equal access to that 

evidence assails the prosecution’s failure to produce it,” citing this court’s decision 

in People v. Patterson, 217 Ill. 2d 407, 446-47 (2005). Lewis Jackson, 399 Ill. App. 

3d at 319. After finding that the testimony of the State’s DNA expert established 

that both parties had the opportunity to test the evidence, the appellate court upheld 

the State’s comments as a “proper response[ ] to the defense’s suggestion of doubt 

regarding the lack of testing.” Id. 

¶ 40 We conclude that defendant’s reliance on the rationale in Lewis Jackson is 

misplaced. Because the availability of forensic testing to both parties is mandated 

as a matter of law by Rule 412(e), it is unnecessary for the State to present any 

evidentiary basis for that purely legal requirement. In addition, the prosecutor in 

Lewis Jackson “emphasized” Jackson’s failure to present evidence from forensic 

testing to the jury (id. at 318), while the statements at issue here consisted of merely 

a brief response explaining a matter of law after the defendant’s closing argument 

highlighted the absence of any forensic testing and asserted that the lack of 

corroboration undermined the testimony of the arresting police officers. As in Lewis 

Jackson, the prosecutor’s statements here simply do not merit the reversal of 

defendant’s conviction. 

¶ 41 We note that Lewis Jackson relies on this court’s decision in Patterson, 217 Ill. 

2d 407, which supports our conclusion in this appeal. In Patterson, we held that the 

State’s redirect examination of its expert witness about the parties’ ability to 

examine a DNA sample and have it retested “was invited by defense counsel’s 

questioning on cross-examination” of the State’s expert witness. Id. at 446. Because 

Patterson’s cross-examination created a question about the validity of the testing, 

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the State’s redirect examination focused on eliminating any doubts raised on crossexamination. As we concluded, “[i]n such situations, error cannot normally be 

claimed.” Id. 

¶ 42 The State’s comments in both Patterson and the instant case were brief and 

properly directed at refuting an inference that the State’s testing decisions were 

improper. In addition, the parties’ arguments and jury instructions in both cases 

offset any potential juror confusion about which party bore the burden of proof. As 

we did in Patterson, we conclude in this case that the defendant failed to show 

reversible error. Accordingly, the plain-error doctrine is inapplicable here. 

¶ 43 Alternatively, during oral arguments before this court defendant focused, for 

the first time, on the prosecutor’s use of the word “but” immediately prior to its 

explanation that both parties had the ability to test the evidence. He asserts that the 

use of that word improperly shifted the State’s burden of proof to him. 

¶ 44 Our review of the record on appeal convinces us that the State’s single usage of 

that conjunction had virtually no impact on the verdict in this case. Immediately 

preceding its explanation of the parties’ ability to test the evidence, the State 

accurately and succinctly explained that “it is our burden of proof, Ladies and 

Gentleman. It is the State’s burden of proof to prove the elements beyond a 

reasonable doubt. It’s a burden we take on every single day.” Those statements 

were met with an objection by defense counsel that was overruled by the trial judge. 

Notably, defendant has not challenged that ruling. The prosecution then continued 

to emphasize its duty to satisfy its burden of proof by adding, “And we welcome 

that burden, Ladies and Gentleman. We welcome that burden.” Only then did the 

State add, “But both sides have access to the evidence.” We also note that the 

State’s brief comments were directly responsive to defense counsel’s closing 

argument, which extensively highlighted the lack of any testing evidence to 

corroborate the testimony of Officers Garcia and Rice. 

¶ 45 Read in the full context of defendant’s trial, the State’s inclusion of the word 

“but” cannot reasonably be read to overcome the repeated references to the State’s 

exclusive possession of the burden of proof repeated throughout the trial. As we 

previously noted, the proper attribution of the burden of proof started in the parties’ 

opening statements, continued in their closing arguments, and culminated in the 

trial court’s final instructions to the jury. 

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¶ 46 To establish plain error, defendant had to prove that the State’s comments were 

“clear or obvious” reversible error that shifted the burden of proof to him. Read in 

the context of the trial as a whole, the State’s use of “but” immediately preceding a 

legally correct statement of Rule 412(e) is neither “clear” nor “obvious” error. 

Without the requisite showing of actual error, defendant’s claims implicating both 

prongs of plain error necessarily fail. 

¶ 47 Further, because the State’s rebuttal closing argument did not constitute error, 

defendant cannot show that his trial counsel’s performance fell “below an objective 

standard of reasonableness.” Thus, he has failed to demonstrate that he received 

ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 688 

(1984) (reciting the standard for professionally competent conduct by trial counsel). 

Accordingly, we reject defendant’s alternative contention that his trial attorney’s 

failure to object to the State’s rebuttal closing argument deprived him of effective 

assistance of counsel. 

¶ 48 III. CONCLUSION 

¶ 49 The appellate court upheld defendant’s UUWF conviction after concluding that 

his “access to evidence to be used against him ‘to have a test made by his chosen 

expert’ ” was “a matter of ‘general knowledge, common experience, or common 

sense.’ ” 2020 IL App (1st) 190252-U, ¶ 23 (quoting Jackson, 391 Ill. App. 3d at 

42-43, and Peeples, 155 Ill. 2d at 477). Although we decline to adopt that rationale, 

for the reasons stated, we now affirm the judgment of the appellate court upholding 

defendant’s conviction. 

¶ 50 Affirmed. 

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