## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Carbajal, 2013 IL App (2d) 111018

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MI GUEL A. CARBAJAL , Def

endant- Appellant.

District & N o. Second District Docke t No. 2-11-1018

Filed Marc h 7, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s conviction for burg lary of a school was reve rsed and the

cause was rema

nded for a new t ri al, since the evidenc e conce rning defe ndant’s intent w a s c lo s e ly balanc ed, and even though defe nse counsel waived any objection to t h e State’s closing arg uments, the arguments which m isstated the law and shifted the burden of proof to defe ndant constituted plain err or.

Dec ision Under
Review Appea l from the Circuit C o u rt of L ake County
, No. 11-CF- 1925; the Hon. Danie l B. Shane s, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l T h omas A. L ilien and Sherry R. Silvern, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

Michae l J . Waller, State’s Attorney , of W aukeg an (L awr ence M. Ba uer and Scott J acobson, both of State’s Attorney s Appellate Pr osecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE SP ENCE delivere d the judg ment of the c ourt, with opinion.
J ustices Z enoff

and Jorge nsen conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant, Migue l A. Carbaja l, was found guilty of burg lary (720 I L CS 5/19-1 (West 2010)). The trial court sentenc ed defe ndant to 24 months’ probation and order ed him to pay restitution. In this direc t appea l, defe ndant ar gu es that the State’s improper rema

rks during closing argument amounted to plain err or under I llinois Supreme Court Rule 615 (eff

. J an. 1, 1967). We a g ree and ther efor e re verse and re mand.

¶ 2 I . BA CKGROUND ¶ 3 On J u l y 1 3, 2011, defe ndant and codef endant L aDe rrion Preac ely wer e char ged b y indictment with burg lary . The sing le count alleg ed that on J une 15, 2011, the t wo entered, without authority , Webster Middle School (the school) w ith the intent to commita thef t. ¶ 4 Def

endant’ s individual trial commence d on August 25, 2011. During the State’s opening
argument, the prosec utor argued that defe ndant, his friend Preac ely
, and a third, undisclosed individual formulated a pl an to enter the s chool at night to perf orm a th ef

t

. Af t er Preac ely shattere d a window to the s chool, t he three ente red the building to find money to buy latenight sna cks. Una

ble to find any

money , they

decide d to leave but e ncounter ed the police

. ¶ 5 Def

ense counsel challeng ed the State’s theory by arguing that defe ndant was innocent of burg lary

. Acc ording t o defe nse counsel, defe ndant made a “dumb decision” by enter ing a school “whe n he wasn’t supposed to.” Whil e they wer e in the school, Preac ely told defe ndant that he wanted to look for money so he could buy snacks at a g as station. Howeve r, defe ndant did not take any

thing or intend to take any

thing. ¶ 6 Offic er Thomas Donnan testified first on behalf of the State. On J une 15, around 10 p.m., Offic er Donnan w a s d is p a tc hed to the school afte r the alar m was activate d. Shortly afte rwa rd, Offic ers Paulsen and Shepherd also arr ived and notified Offic er Donnan that there was a broken window on one side of the school. Offic er Donnan then stood near the main entra nce of the school and saw two individuals running inside. One of the individuals, later identified

as Preac ely
, exit ed the building, and Offic er Donnan took him into custody

. No money was found on Preac ely

. The other individual, later identified as defe ndant, did not exit the school

-2-but stopped and ran in another direc tion. Wit h the assistance of a canine unit, defe ndant was

found inside the school a

while later

. ¶ 7 Serg eant Scott Thomas testified that he interviewe d Preac ely
, who said he was with two other individuals during the incident. Serg eant Thomas sear ched the school from top to bottom, which took about 90 minutes. The last room t o b e chec ked was the boiler room, wher e defe ndant was found lying on some pipes in the ceiling

. Def endant was told to come down, and he did. Defe ndant was taken into custody , wher e he spe nt the night. ¶ 8 Detec tive Michae l Taylor testified that he inter viewed de fenda

nt the nex t day , on J une 16. Def endant admitted that he went inside the school with his friend Preac ely
, who had kicked in the window. He also admitted that he was found hiding in the boiler room. Initially
, defe ndant said that he enter ed the school to play basketba ll. Def endant’ s story subsequently chang ed, and he said that Preac ely h ad t h e “munchies” and was looking for chang e in differ ent rooms to buy a snack. Def endant also said that a third individual was with them, but he did not know his name. The third person wa s a friend of Prea cely ’s. ¶ 9 Def

endant g ave a written statement to Dete ct i ve Tay lor. The written statement, which

was re ad to the jury , stated as f ollows:
“W e we re coming from my house on the way to [P rea cely ’s] house when we seen [ sic ] [t he school] and decided to g o in. He kicked t he window and we we n t inside. He was talkingabout him be ing hung ry and may be find a dollar or

may be some c hang e so

we can g o to t h e s t o re an d buy snacks. We couldn’t find any chang e so we decide d to leave

. I was sug g esting g oing to the g y m, may be play some ball or some stupid stuff, but that was dumb so we just left. As we wer e leaving
, we seen [ sic ] police lights and g ot

scar ed so we decide d to run. I separat ed from [P rea cely] and went downstairs to the boiler room and de cided to sit in there.” ¶ 10 J ames Gaha g an, a school employ ee, testified that the incident occur red during summer brea k when only cer

tain individuals with key s wer e allowed to e nter the school. A brick or some ty pe of stone w as used to bre ak the window. ¶ 11 The State rested, and defe ndant moved for a direc ted ver dict on the basis that the State had not shown that defe ndant enter ed the school with the intent to commit a theft. The trial court de nied def

endant’ s motion. ¶ 12 Def

endant testified on his own behalf as follows. He was 19 y ear s old and lived at home with his pare nts and siblings. On J une 15, he and Preac ely decide d to leave h i s house and walk to Preac ely ’s house. On the way , a friend of Preac ely ’s, whom defe ndant had never met, joined them. Preac ely lived a couple of blocks from the school. As they walked throug h the school parkinglot, Preace ly kicked in one of

the school’s windows. Prior to that, the three had not discussed a

ny thing a bout breaking a

window. ¶ 13 Pr e a c e ly went inside the school throug h the broken window, and defe ndant “s to o d a r o u n d for a fe w s ec o n d s , ” not knowing whether to follow Preac ely or “just run and leave .” Def endant decide d to follow Preac ely

. Once inside the school, Preac ely said he was hung ry and wanted to look for some loose chang e. This idea did not come up until they wer e in the school. Preac ely opened the door to the school hallway and tried to open some classroom doors, but they wer e locked. Def endant sug g ested chec king out the g y m and playing “some

-3-basketba ll or something.” After that, defe ndant said “may be [t hey ] s h ould just g et out” of there . Def

endant talke d about t he gy m to divert Preac ely

and “g et his attention off of what he wa s trying to do.” Immediately afte r that, they

decide d to leave. ¶ 14 As they wer e le a v in g , th e p o li c e a

r rive d, shining their flashlig hts. The police appr ehende d Preac ely
, who had exit ed the school, and defe ndant g ot scar ed. Instead of exit ing the school, defe ndant ran and hid in the boi ler room. L ater , h e wa s taken into custody and placed in a holding c ell. The ne x t morning, a detec tive questioned def

endant, a nd defe ndant g ave him

a wr itten statement. ¶ 15 Def

endant was questioned about his written st at em en t

. T h o u gh h e wr ote that they “dec ided” to g o in the school, there was no discussion be fore enter ing the school; Preac ely

was the one who first decide d to g o in. In his statement, defe ndant wrote they could not find chang e, so t hey

decide d to leave. H oweve r, def endant did not look for a

ny chang e, did not touch any thing, did not move any

thing, a nd did not take any

thing. ¶ 16 Def

endant denied planning to take any thing b ef o re en t ering the school. In addition, befor e enter ing the school, he did not know that Preac ely was g oing to look for chang e. Once inside the school, he did not look for a ny thing or help Prea cely

find any thing. ¶ 17 On cr o ss-examination, defe ndant was questioned further about his written statement. Def endant admitted that he wrote in his statem en t t h at “we ” could g o to the s tore and buy snacks. He us ed the word “we” beca use he would have acc ompanied P rea cely t o t h e store

even though he would not have purcha sed any snacks. Although defe ndant wrote that “we ” could not find any chang e, he denied looking for chang e in the sch o o l

. According to defe ndant, Preac ely ’s other friend was not looking for chang e either. Def endant wrote in his
statement that playing basketba ll was “stupid” beca use they wer e not suppose d to be in the school in the first place

. Def endant told the detec tive that he went inside the school only to stop Preac ely
, but he admitted that he did not in cl u d e this information in his written
statement. ¶ 18 The parties rested. During the jury instruction confe renc e, the court ag ree d to instruct the jury o n t h e l esser included offe nse of criminal trespass to rea l proper ty

. The court also
ag ree d, over defe nse counsel’s objection, to instruct the jury on the theory of acc ountability

. ¶ 19 The S tate maintained during its closing argument that defe ndant, P rea cely
, an d a t hird
person h ad a plan to g o from defe ndant’s house to Preac ely ’s house, but the plan then chang ed. The State argued: “The defe ndant wants to claim or did claim that his friend g ot hung ry and that his friend w anted to stea l some money to use t hat m oney to pay for snacks at a gas station and that all this was his frie nd’s idea a nd he had nothingto do with it.
Eve n if this self-serving testimony of the de fendant is in fact true, it doesn’t matter in this case, it doesn’t affect the outcome

. ” (Empha sis added.)
At this point, defe nse counsel objected. Th e court admonished the jury that counsel was allowed to argue; that what counsel said was not evidenc e; and that the court would instruct the jury on the law. Following the court’s admonishments, the State argued that “ it does not p r o ve t h e d

efendant’s innocenc e in any way. In any case, it’s irrelevant. And why is it irrelevant? Be cause that’s what the law says. ” (Empha sis added.)

-4-¶ 20 The State advised the jury that the only “re al issue here ” was intent. To this end, it argued

that defe ndant broke into the school with his friend with the intention of stealing money or something of

value. Tur

ning to de fenda

nt’s written statement, the State a rgued: “And what about his contention about diverting att en t i o n from his friends? Why wasn’t that in the statement? I t’s a pretty vital fac t to include, to let the police know that the only intention that the defe ndant had was to persua de his fr i en d s and to have him

come out of the school or g o play basketba ll instead of stealing the m o n ey

. That right there proves your innocenc e, and he didn’t put that in his statement .” (Emphasis added.)
Def ense counsel objected, and the court advised the jury that, althoug h counsel was allowed
to arg ue the evidenc e, defe ndant was presumed innocent of the char g e ag ainst him. The court further advised the jury that the State had the bur den of pr oving de fenda nt guilty beyond a

rea sonable doubt; that the jury should use its re collection of the evidenc e; and that counsel could ar gue re asonable infere nces f rom the evide nce. ¶ 21 The State went on to arg ue that defe ndant and his friend wer e equally culpable for their actions. It arg

ued:
“It’s plain and si mple. T h e d ef en d ant and his friend car

ried out a criminal act, and toge ther they g ot caught. They should equally be held culpable. They broke into a school with no authorization and with the intent to steal. And I want to remind y ou that the act of stealing is not nece ssary under this char g e, but that the intent is there

. In this case the defe ndant entered the school with his friend without permission with the intent to find
money and take that money

. Def ense counsel’s sug g estion that the friend holds the blame, and for that rea son y ou can’ t hold the defe ndant guilty

. The problem with that is that’s not the law. ” (Emphasis added.) Ag ain, defe nse counsel objected. The court admonished the jury that it would instruct it on the law; that counsel was allowed to argue the evidenc e and rea sonable infere nces there from; and that what the attorney s said was not evide nce. ¶ 22 After discussing the differ ent propositions of burg lary
, the State conclude d that “ [i] t is
up to you to take the testimony and evide nce presented to you by the State and find the defe ndant guilty

of burg lary .” (Empha sis added.) ¶ 23 The jury found defe ndant guilty of burg lary

. Def endant subsequently filed a motion for judgme nt notwithstanding the verdic t or, in the alternative, a new trial. The trial court denied defe ndant’s motion. The trial court sentenc ed defe ndant to 24 months’ probation and order ed him to pay

restitution. Defe ndant timely appea led.

¶ 24 I I . ANALYSI S ¶ 25 A. Plain-Error Review of Improper Re marks ¶ 26 On appea l, defe ndant argues that sever al of the State’s rema rks during closingargument

wer e improper and thus denied him a fair trial. Thoug h the majority of t h e challeng ed

rema rks wer e objec ted to duringtrial, defe ndant conc edes that he fa iled to inc lude them in h is p o s tt r ial motion, resulting in forf eiture. Neve rtheless, defe ndant urg es this court to revie w

-5-the issue under the plain-e rror

doctrine. ¶ 27 The plai n -e rr o r doctrine contained in I llinois Supreme Court Rule 615(a) provides a

narr ow exception to the g ener al rule of proce dural de fault. People v. Lewis
, 234 I ll. 2d 32, 42 (2009). The doctrine allows a revie wing court to consider an unprese rved err or when (1) a clear or obvious err or occurs and the evidence is so closely bala n ced that the error alone threatened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea

r or obvious err or occur s and that err or is so serious that it aff ecte d the fairne ss of the defe ndant’s trial and challeng ed the integ rity of the judicial proce ss, reg ardle ss of the closene ss of the evidenc e. Id. at 42-43. The defe ndant bear s the burden of persua sion under both prong s of t h e p l ain-error test. Id. at 43. Our first step in plain-er ror analy sis is deter mining whe ther a

ny err or occ urre d. Id. at 42.

¶ 28 B. Er ror Oc curr ed ¶ 29 Over all, defe ndant lists five rema rks made by the State during closing argument that he contends either misstated the law or shifted the burden of proof. I t is well settled t hat the State may comment o n the evidenc e, draw infere nces there from, and comment on the

acc used’s cre dibilit y

. People v. Echols
, 382 I ll. App. 3d 309, 318 (2008). Thoug h the State is g iven wide latitude in closing arguments ( id. ), the State is not allowed to misstate the law

or fac ts of the case , and it is not allowed to diminis h its burden of proof ( People v. Buck

ley
, 282 I ll. App. 3d 81, 89 (1996))

. As we discuss below, we ag ree with defe ndant that these five

rema rks constituted err or. 1 ¶ 30 The first two challeng ed comments wer e made during the State’s discussi o n o f l egal

acc ountability . First, the State a rgued:
“The defe ndant wants to claim or did claim that his friend g ot hung ry and that his friend wanted to steal some money to use that money to pay for snacks at a gas station and that all this was his frie nd’s idea a nd he had nothingto do with it.
Even if this self-serving testimony of the defendant is in fact true, it doesn’t matter in this case, it doesn’t affect the outcome

. ” (Empha sis added.) Second, the State a

rgued:
“It’s plain and si mple. The defenda nt and his friend carri ed o u t a criminal act, and toge ther they g ot caught. They should equally be held culpable. They broke into a school with no authorization a

nd with the intent to steal. And I want to remind y ou that the act of stealing is not nece ssary under this char g e, but that the intent is there

. In this case the defe ndant entered the school with his friend without permission with the intent to find

I n this cas e, we not e that cl osi ng ar gum ent was del ivere d by a stud ent pur sua nt to I ll ino is 1 Supr eme Cour t Rule 711( c) (2) (i i) (e ff

. Fe b

. 10, 2006 ), whic h al lows a qua li fying la w st ude nt or gradua te to par ti ci pat e in cr iminal tr ia l pro cee din gs as an ass is ta nt of a sup er visin g, l i cen sed
at tor ney. Wh il e we laud t he p rogra m of al lowi ng st ude nts to par ti ci pat e in tri al s and e nco ura ge it s

con ti nue d app li cat ion
, we cau ti on tha t the rul e it sel f re qui re s the sup ervisin g at tor ney to “be pre sen t and re spo nsi ble for the con duc t of the pro cee din gs.” I ll

. S. Ct. R. 7 1 1 ( c ) ( 2 )( ii ). Appr opr ia te sup er visio n i s c ri ti cal to th e f unc ti oni ng of t he rule

.

-6-money and take that money

. Def ense counsel’s sug g estion that the friend holds the blame, and for that rea son y ou can’ t hold the defe ndant guilty

. The problem with that is that’s not the law. ” (Emphasis added.)
Def ense counsel objected to both of these comments. On b o t h o cc asi ons, the court admonished the jury

that it would inst ruct it on the l aw; that counsel was allowed to ar g ue the evidenc e and rea sonable infere nces there from; and that what the attorney s said was not evidenc e. ¶ 31 Misstatements of law in closing argument can be g rounds for reve rsal ( People v. Jackson
, 2012 I L App (1st) 092833, ¶ 36 ), and both of the State’s rema rks misstated the law. The defe nse theory was that defe ndant had no intent to steal money when enter ing the school. See 720 I L CS 5/19-1 (West 2010) (a person commits burg lary when without authority he kno wing ly enters a building with intent to commit a felony or theft). In terms of

acc ountability
, the defe nse theory was that defe ndant had no knowledg e of Preac ely ’s intent
to steal money upon enter ing the school and that, at most, he was guilty of criminal trespass to rea l proper

ty

. See 720 I L CS 5/5-2(c) (West 2010) (a person is leg ally acc ountable for the conduct of another when either befor e or during the commission of an offe nse, and with the i n t ent to promote or fac ilitate that commission, he or she solicits, aids, abets, agr ee s , o r attempts to aid t hat ot her person i n the planning or commi ssion of t he offense)

. The S tate,

on the other hand, argued that defe nd ant was leg ally acc ountable for Preac ely ’s actions in that he shar ed Prea cely ’s intent to steal money upon enter ing the school. ¶ 32 Contrary to what the State argued, if the jury believed defe ndant’s testimony that, befor e enter ing the school, he did not have knowledg e of Preac ely ’s intent to steal money , it would have aff ecte d the outcome beca

use defe ndant would not have had the intent nece ssary to be

acc ountable for Preac ely ’s actions and thus guilty of burg lary . The State also misstated the law by advising the jury that the defe nse theory
, wh ich was that Preac ely
, alone, held the blame, could not absolve defe ndant. By arguing that that was not the law, the State misstated the law of acc ountability as to the burg lary char g e. In other words, had the jury believed defe ndant’s version of events, defe ndant would have lacke d the intent nece ssary to be

acc ountable for Preac ely ’s actions, and, at most, he would have been convicted of criminal trespass to re al prope rty

. ¶ 33 Def

endant is also corr ect that the State improperly shifted the burden of proof by telling the jury on two occa sions that he failed to prove his innocenc e. Refer ring to defe ndant’s selfserving testimony
, the State argued that “ it does not prove the defendant’s innocenc e in any way. In any case, it’s irrelevant. And why is it irrelevant? Bec ause that’s what the law says. ” (Emphasis adde d.) Then, in r efe renc e to def endant’ s written statement, the State a rgued:
“And what ab o u t h i s contention about diverting attention from his friends? Why wasn’t that in the statement? I t’s a pretty vital fac t to include, to let the police know that
t he only intention that the defe ndant had was to persua de his friends and to have h i m

come out of the school or g o play baske t b al l instead of stealing the money

. That right there proves your innocenc e, and he didn’t put that in his statement .” (Emphasis added.) Def ense counsel did not object to the first rema rk but objected to the second rema rk. In

-7-response to the objection, the court admonished the jury that, althoug h counsel was allowed

to arg ue the evidenc e, defe ndant was presumed innocent of the char g e ag ainst him. The court also advised the jury that the State had the burden of proving defe ndant gu i l t y beyond a

rea sonable doubt; that the jury should rely on its rec ollection of the evidenc e; an d that counsel c ould argue re asonable infere nces f rom the evide nce. ¶ 34 In People v. Phillips
, 127 I ll. 2d 499, 527 (1989), our sup re m e co u rt s t at ed t h at it is impermissible for the prosec ution to attempt to shift the burden of proof to the defe nse. The law presumes the innocenc e of an acc used until he is proven guilty beyond a rea sonable doubt ( People v. Tyson
, 137 I ll. App. 3d 9 1 2
, 9 2 1 (1985))
, and the State is not allowed to imply that the defe ndant had to show his innocenc e ( People v. Rey na , 289 I ll. App. 3d 835, 839-40 (1997))

. Whil e the State may comment on evidenc e pres en ted by the defe ndant, “[t] here is a g reat de al of differ ence betwee n an alleg ation by the [S tate] that defe ndant did
not prove himself innocent and statements questioning the rele vance or cre di b i l ity of a defe ndant’s ca se.” Phillips , 127 I ll. 2d at 527. ¶ 35 Her e, the State went beyond commenting on the rele vance and cre dibilit y of def endant’ s

case when it stated, in ref ere nce to his self-se rving testimony
, that it did not p ro v e h i s innocenc e in any way

. Instead of challeng ing the cre dibilit y of defe ndant’s testimony that b ef o re enter ing the school he had no intent to steal m oney and did not know of Preac ely ’s intent to steal money , the State g ave the jury the impression that he was under an obligation to pr ove his innoc ence

. L ater , when challeng ing defe ndant’s written statement on the basis that it did not include his stated intention to try to divert Preac ely

from takingmoney

once inside the school, the State went beyond simply pointing out this omission from the written
statement

. R ather, it went as far as saying that including this information in his written
statement would have proven defe ndant’s innocenc e, as though he was require d to do so, but he failed to include it. Ag ain, the State’s clea r messag e to the jury was that defe ndant had an obligation to prove his innocence , which wa s err or. ¶ 36 L ast, defe ndant ref ers to the State’s final comment to the jury during closing argument. After discussing the leg al propositions to establish burg lary
, the State conclude d by telling the jury that “ [i] t is up to you to take the testimony a n d evide nce presented to you by the State and find t h e d ef

endant guilty of burglar

y .” (Emphasis added.) Def endant argues t hat the State essentially

advised the jury that it did not need to consider a ny evidenc e fr om the defe nse in rea chingits determination, which wa s a misstatement of the law

. ¶ 37 By ad m o n i s h i n g the jury to consider the State’s evidenc e (to the obvious exclusion of defe ndant’s evidenc e), we ag ree that the comment was an incomplete statement of the law, in that the corr ect standard is whether
, taking all of the evide nce into consideration, guilt as t o ever y essential element of the char g e has been proven beyond a rea sonable d o ub t

. S ee People v. Y

oung , 347 I ll. App. 3d 909, 927 (2004). This c omment, sta nding alone, was not

near ly as objectionable as the other rema rks discussed above; howeve r, t h e comment b ec o m es problematic in the contex t in which it was made. See People v. Beltran
, 201 1 I L App (2d) 090856, ¶ 61 (the revie wing court can consider the cumulative eff ect of improper
argument rathe r than assess the prejudicia l eff ect of ever

y isolated comm ent); People v. Maldonado
, 402 I ll. App. 3d 411, 422 (2010) (whe n revi ew i n g claims of prosec utorial misconduct in closing argument, a revie wing court will consider the entire closing argument

-8-in order to place the comments i n co n t ex t ). Prior to direc ting the jury to take the evidenc e

prese nted by the Stateand find defenda nt guilty , the State improperly advised the jury

that defe ndant’s testimony did not aff ect the outcome of the case and was irrele vant; that ignor ing or rejecting the defense theory was the law; and that defe n d an t was under an obliga tion to prove his innocenc e. There fore
, put in context, the State’s comment perpe tuated a theme of misstating the law.

¶ 38 C. Reversible Err or Unde r Plain-Err or Doc trine ¶ 39 Having deter

mined that the State did make improper comments during closing argument,

we next co n s i d er whether the improper comments amounted to reve rsible err or under the plain-er ror doctrine. Th e d efendant fac es a substantial burden in achie ving reve rsal of his conviction based upon improper rema rks during closing argument. People v. Mee ks
, 382 I ll. App. 3d 81, 84 (2008). This is espec ially true here
, wher e we revie w the err ors in the context of the plain-er

ror doctrine as opposed to the standard that applies when an err or is prese rved. See People v. Euell
, 2012 I L App (2d) 101130, ¶ 22 (“when a defe ndant prese rves this issue for r eview, w e may

aff irm if we deem t he comments harmless bey ond a reasonable doubt,

reve rsing only wher e the im p ro p er rema rks resulted in substantial prejudice to the defe ndant’s rig ht to a fair trial” (empha sis omitted) (interna l quotation marks omitted)); see also People v. Hampton
, 387 I ll. App. 3d 206, 220 (2008) (the revie wing court asks whether the State’s comments during closing arg ument eng ender ed substantial prejudice aga i n s t a defe ndant such that it is impossibl e to say whether a verdic t of guilt resulted from them). As this court rec ently noted in Euell
, 2012 I L Ap p (2d) 101130, ¶ 22, “[i] f we do not automatically reve rse in lig ht of a preserv ed misstatement of the burden of proof, cer tainly

we may not automatically reve rse in light of a forfeited one.” (Emphase s in ori ginal.) There fore
, in a ccor dance with the plain-er ror r ule, we w ill reverse only

when (1) a clea

r or obvious err or occur s and the evidenc e is so closely balanc ed that the err or alone threatened
to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea r or obvious e rror occur s and that err or is so serious that it a ffe cted the fairne ss of the defe ndant’s trial and challeng ed the i n t egrity of the judicial proce ss, reg ardle ss of the closene ss of the evide nce. Lewis , 234 I ll. 2d at 42-43.

¶ 40 D. Evidenc e Was Closely Ba lance d ¶ 41 Def

endant contends that both prong s of the plain-er ror doctrine are satisfied in this c ase. Be g inning with the first prong , he argues that the evidenc e was closely balanc ed beca use his
guilt depended on his intent at t he mom ent P rea cely kicked in the window a

nd enter ed the school. Acc ording to defe ndant, his testimony reve aled t h at h e was mere ly following Preac ely ; there was no discussion of what Preac ely was g oing to do befor e he kicked in the wi n d o w and enter ed the school; and it was not until after they enter ed the school t h at Preac ely broug ht up the idea of looking for money to buy snacks. Def endant conclude s that, had the jury not been told to ignor e thi s evidenc e, it would have acquitted him of burglar y based on a ccounta

bility and per haps convic ted him of criminal tre spass to rea l property

. ¶ 42 I t is undisput ed that def endant entere d the s chool after Prea cely broke the window and

-9-that he hid in the boi ler room when police arr iv ed

. Def endant’ s flig ht from poli ce is proof of consciousness of guilt. See People v. Harris
, 225 I ll. 2d 1, 23 (2007) ( evidenc e of f light is g ener ally admissible as p r o o f of consciousness of guilt). Howeve r, defe ndant is corr ect that this evidenc e could have led the jury t o find defe ndant guilty of criminal trespass to rea l
proper ty as opposed to burg lary

. ¶ 43 For

the burg lary

char g e, thi s case did boil down t o his intent at t he mom ent he enter ed the school. The intent nece ssary to commit burg lary is usually established by circ umstantial evidenc e since it is rar ely susceptible of direc t pr oof. See People v

. Davis
, 233 I ll. App. 3d 878, 880 (1 9 9 2 ). I n deter mining defe ndant’s intent, the jury could consider his in-court testimony as we ll as his written statement. ¶ 44 On the one hand, defe ndant’s wr it ten s ta te me nt supported an infere nce that defe ndant had the i ntent nece ssary to commit a burg lary upon enter ing the school, in that the statement repe atedly used the word “we .” Def endant said in his statement that “we ” saw the school and decide d to g o in; Pre ace ly kicked the window and “we ” went inside; Preac ely “wa s talking about him be ing hungry and may be find a dollar or may

be some chang e” so “we ” could g o to the store and buy snacks; and “[w]e” could not find any chang e so “we ” decide d to leave

. On the other hand, t h e written statement did not indicate when Preac ely first talked about looking for money in the school, the most critica l issue in terms of intent. Ho weve r, defe ndant offe red specific t es t i m o n y o n this issue. Def endant testified that there was no discussion of what Prea cely was g oing to do be fore they enter ed the school and that itwas not until after they enter ed the school that Preac ely broug ht up the idea of looking for money to buy snacks. Given that defe ndant’s written statement was ambiguous as to when Preac ely develope d the intent to look for money in the school, and that defe ndant denied that Preac ely voiced such an intent prior to enter ing the school, the evidenc e was closely balanc ed on the issue of def

endant’ s intent. ¶ 45 In case s wher e the evidenc e was not closely balanc ed on the issue of intent, the evidenc e of the defe ndant’ s i n t ent was much g rea ter than what is prese nt here

. See People v. Land
, 2011 I L App (1st) 101048, ¶¶ 22, 101-03 (the court found that the evidenc e on the issue of whether the defendant int ended to kill or i njure an animal was not closely balanc ed where it would have taken four to six wee ks for a heavy tow chain to become emb ed d ed i n the dog ’s neck, there was expert testimony reg arding the injury
, and the defe ndant’s testimony

was inhere ntly incre dible); see also People v. Carter
, 405 I ll. App. 3d 246, 253 (2010) (the
court found that the evidenc e of the defe ndant’s intent to commit ag g ravated criminal sexual abuse w as over

whelmingwher e the undera g e victim and an eyewitness testi fied re g arding the sexual incident); People v. W ells
, 184 I l l

. App. 3d 925, 934-36 (1989) (evide nce not closely bal ance d on the centr al issue of the defe ndant’s intent to deliver drug s under an

acc ountability

theory wher e the de fenda

nt counted the money

duringa drugdeal)

. ¶ 46 Having deter

mined that the evidence was closely balanc ed on t h e i s s u e of def endant’ s intent, we ag ree with defe ndant that the State’s improper comments during closing argument

sever ely threatened to tip the scale s of justice ag ainst defe ndant. By arguing that defe ndant’s self-se rving testimony had no eff ect on the outcome, and that it was “not the law” that defe ndant could be absolved if Preac ely
, alone, held the blame, the State essentially advised the jury that, even if it believed defe ndant’s version of events, it did not matter; he would still

-10-be guilty of burg lary

. In addition to misstating t h e l aw o f acc ountability
, the State twice

stated that def

endant had not pr oved his innocenc e. See People v . Brooks , 345 I ll. App. 3d 945, 951 (2004) (“the number of times the jury is c onfronted with a misstatement of law is rele vant in evaluating the nature and extent of the harm” ). As stated, this court can consider the cumulative eff

ect of improper argument ( Beltran
, 2011 I L App (2d) 090856, ¶ 61), which here advised the jury not only that defe ndant had a duty to prove his innocenc e, but also that his theory of def ense w as not valid. ¶ 47 On this issue, People v. Gutierrez
, 239 I ll

. Ap p

. 3 d 5 3 6 (1 9 9 2 ), i s instructive. In Gutierrez
, the evidenc e conce rning the defe ndant’s voluntary -intox ication defe nse was closely balanc ed. Id. at 544. During closing argument, the State impli ed that voluntary intox ication was not a valid defe nse and re p ea t ed ly stated that the defe ndant and defe nse witnesses did not “prove ” or “esta blish” the intox ication defe nse. Id

. R ea s o n ing that the State’s closingarg

ument could be inter

prete d only

as a state ment that the defe ndant had to prove his defe nse of voluntary intox ication, t he court foun d that the S tate’s mis statements of t he law a

mounted to plain error

. Id. at 544-45; see also People v. Derr
, 316 I ll. App. 3d 272, 275 (2000) (the State’s repe ated ref ere nces to the defe nda

nt’ s failure to prese nt evidenc e to prove his innocenc e and te stify denied the defe ndant a fair trial); People v . Giangrande
, 101 I ll. App. 3d 397, 401-02 (1981) (it was improper for the Sta t e t o as k, “ ‘whe re’ s the evidenc e that defe ndant didn’t do it? ’ ” (empha sis o m i t ted), beca use it sug g ested that the defe ndant was r equire d to present e vidence tendingto prove his innocenc e). ¶ 48 In addition, the fac t that the trial court admonished the jury as to the applicable law afte r three out of the five impr oper rema rks does not aff

ect our conclusion. “[T] he prejudicia l eff ect of an improper argument cannot alway s be era sed from th e m inds of the jury by an admonishment from the court.” Buck ley
, 282 I ll. App. 3d at 90; see also Derr
, 316 I ll. App. 3d at 276 (“[i] t is reve rsible err or for the State to a ttempt to shift the burden of proof to the defe nse, notwithstanding the fac t that the jury is properly instructed reg arding the burden of proof” ). ¶ 49 Finally
, though the evidenc e reg arding defe ndant’s in tent w a s c lo s ely balanc ed, there was sufficie nt evidenc e to convict defe ndant of burg lary
, meaning there is no d o ub l e j eo pardy impediment to a new trial. See People v. W heele r , 226 I ll. 2d 92, 134-35 (2007) (bec ause the evidenc e was sufficie nt to convict the defe ndant, there was no double jeopar dy impediment
to a new trial). Our resolution of this case o n t h e first prong of the plain-er ror doctrine obviates the ne ed to consider defe ndant’s argument under the second pr ong

.

¶ 50 I I I . CONCLUSI ON ¶ 51 The State’s improper rema rks during closing argument, which misstated t h e l aw an d shifted the burden of proof, amount ed t o plain err or beca use the evidenc e was closely balanc ed. Acc ording ly
, the judgme nt of the circ uit court of L ake County is reve rsed and the

cause is remande d for a

new tria l.

¶ 52 Reverse d and re manded.

-11-