Illinois Official Reports

Appellate Court

People v. Scott, 2020 IL App (1st) 180200

Appellate Court 

Caption

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

KENNY SCOTT, Defendant-Appellant.

District & No. First District, Sixth Division 

No. 1-18-0200

Filed

Rehearing denied

July 24, 2020

August 31, 2020

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 14-CR-16517; the 

Hon. Kenneth J. Wadas, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Patricia Mysza, and Carolyn R. Klarquist, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

Jon J. Walters, and Paul E. Wojcicki, Assistant State’s Attorneys, of 

counsel), for the People.
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Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Presiding Justice Mikva and Justice Connors concurred in the 

judgment and opinion.

OPINION

¶ 1 Following a jury trial, defendant Kenny Scott was convicted of attempted first degree 

murder (720 ILCS 5/8-4, 9-1(a)(1) (West 2014)) and armed robbery (id. § 18-2(a)(2)). He was 

sentenced to respective terms of 31 and 21 years’ imprisonment, to be served consecutively, 

based on the court’s finding of severe bodily injury (730 ILCS 5/5-8-4 (d)(1) (West 2014)). 

On appeal, defendant contends that his conviction for armed robbery should be reduced to 

simple robbery because the State failed to prove beyond a reasonable doubt that he possessed 

a firearm at the time of the robbery. He also contends that his convictions should be reversed, 

and he should receive a new trial, because the trial court erred in questioning jurors pursuant 

to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). For the following reasons, we affirm.

¶ 2 I. JURISDICTION

¶ 3 On February 9, 2017, defendant was convicted after a jury trial. Defendant filed a motion 

to reconsider, which the trial court denied, and he was sentenced on January 5, 2018. He filed 

a notice of appeal on January 12, 2018. Accordingly, this court has jurisdiction pursuant to 

article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois 

Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule 606 (eff. July 1, 2017), governing appeals 

from a final judgment of conviction in a criminal case entered below.

¶ 4 II. BACKGROUND

¶ 5 Prior to trial, the State filed a motion to admit evidence of other crimes, seeking to admit 

evidence of 10 prior acts of domestic violence against Charmaine Lane, who defendant 

previously dated, and two prior acts of domestic violence against one of the victims in the 

present case, Shandel Wilson. The court noted that the incidents the State sought to admit had 

occurred during a four- to five-year period prior to the present offense. The court found that 

the probative value of admitting the evidence outweighed the prejudicial effect and granted the 

State’s motion. 

¶ 6 During jury selection, the court questioned potential jurors in groups and individually 

whether they “agree with and accept” the propositions of law required under Rule 431(b). With 

slight variations, in each instance, the court informed potential jurors that “[t]he State has the 

burden of proof beyond a reasonable doubt” and then asked whether they “agree with and 

accept that proposition of law.” The court then informed potential jurors in groups and 

individually that “The defense has no burden. The defendant is presumed innocent. He does 

not have to testify. He does not have to present witnesses. If he chooses not to testify, you can’t 

hold that against him,” and asked whether they “agree with and accept those propositions of 

law.” In one instance, the court informed a potential juror that “The defense has no burden. 

He’s presumed innocent. He does not have to testify or call witnesses. Assuming he does not 

testify, you can’t hold that against him,” and asked, “Do you agree with and accept that 

proposition of law?” 
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¶ 7 At trial, Lane testified that defendant is the father of her four-year-old daughter. While they 

were dating, police were called on separate occasions when defendant “head-butted” Lane in 

the mouth, requiring a dentist to reposition her teeth; sprayed mace in her eyes; and broke her 

window with a crowbar, entered her house, and hit her on the leg with the crowbar. Officer 

Reginald Murray testified that he was working as a school officer at the high school Lane 

attended in 2010 and observed defendant hit Lane’s head on a steel door outside of the school. 

Defendant was arrested as a result of his actions.

¶ 8 Veronica Morris testified that, on July 5, 2014, her daughter, Wilson, had been dating 

defendant for about two years. Wilson and her children lived with Morris, along with Morris’s 

goddaughter, Jenail White, White’s children, and an uncle. About 11 p.m., on the date in 

question, Wilson and White were leaving the apartment. Wilson asked Morris to accompany 

them downstairs because defendant was outside. When the trio walked outside, defendant said 

he wanted to talk to Wilson and asked her to walk with him. Wilson refused, and along with 

Morris and White, she went back upstairs. Later, the trio went downstairs, and Morris saw 

defendant standing directly in front of her, coming into the gate “like he was getting ready to 

come *** up the stairs.” Morris told defendant she would call the police if he did not leave. 

She took her phone out of her pocket and dialed 911. Defendant “snatched the phone” from 

Morris and told the operator that they did not need the police and disconnected the call. 

¶ 9 Defendant took Morris’s cell phone and ran. She chased him but stopped because her 

daughters were behind her. Morris said, “F*** it, you can keep the phone,” and started walking 

back to her apartment. As she did, she heard Wilson screaming that defendant had a gun. 

Morris turned and saw that defendant had a gun in his hand and was running toward them. 

Wilson and White were closer to the apartment at this time. Morris grabbed defendant around 

the waist and grabbed his arm as he held the gun. Morris demonstrated for the jury how 

defendant was holding the gun, in his right hand with his arm extended. She said defendant 

was pointing the gun at Wilson. Defendant pulled his arm away from Morris and fired the gun 

three to four times. Then, he took the gun and Morris’s phone and ran. Morris started chasing 

defendant but stopped when Wilson called, “Mom, come back, I’m shot.” Wilson was injured 

in both legs, near her knees. Morris called 911, using a phone belonging to someone who was 

in the hallway. On a recording of the call, which was admitted into evidence and published to 

the jury, Morris shouted, “He shot my daughter,” repeated the address, and provided a clothing 

description of the shooter. Police and paramedics arrived, and Wilson was taken to the hospital. 

¶ 10 On cross-examination, Morris explained that she did not see defendant with a gun until 

Wilson yelled that he had a gun as Morris was coming back to her apartment. Morris said 

defendant was not shooting toward her; he was shooting at Wilson. Morris admitted that she 

did not like defendant. Three to four days after Wilson got out of the hospital, she and her 

children went to Tennessee with defendant. A few weeks after they left, Morris contacted 

authorities in Tennessee. 

¶ 11 On redirect, Morris explained that it was “[l]ike maybe five minutes or so” after she chased 

defendant and began to walk back to her apartment that Wilson screamed that defendant had a 

gun. 

¶ 12 White testified that, on the night in question, she and Wilson were leaving Morris’s 

apartment to go out with their friend, Brianna Lindsey.1 Wilson asked Morris to come outside 

1

Brianna Lindsey died in a car accident prior to trial.
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with her and White. White saw defendant outside. Defendant said he wanted to talk to Wilson. 

Morris took out her phone and said she was going to call the police. Defendant “snatched” the 

phone and “not even a couple minutes after that,” Morris said defendant had a gun. White 

heard three gunshots and saw that Wilson had been shot in the legs. White could not see Morris 

or defendant at that time. 

¶ 13 Morris took White’s phone and called the police. Before the shooting, White had also 

called 911, and the State published a recording of the call to the jury. On the recording, White 

gave her name as Ashley and reported a domestic incident between her mother and her friend’s 

boyfriend. She did not respond when the operator asked her whether he had any weapons on 

him. White explained that, when she spoke to police on the scene, she told them her name was 

Ashley because she knew both defendant and Wilson and did not want to get involved. White 

acknowledged that she had been convicted of a narcotics offense and had a pending charge for 

retail theft at the time of trial. 

¶ 14 Wilson testified that she started dating defendant in 2013. On April 3, 2014, defendant hit 

Wilson in the eye with his fist while they were at a gas station. The police photographed her 

injuries, which the State presented as evidence. On May 26, 2014, defendant hit Wilson in the 

mouth, causing a cut. 

¶ 15 On July 5, 2014, as Wilson left the apartment, she asked her mother to accompany her 

downstairs because she believed defendant was outside. Defendant tried to talk to Wilson, and 

Morris told him “no.” Wilson spoke with him, and then she went back upstairs with Morris 

and White. A while later, they went downstairs again, and defendant was outside, standing 

inside of the gate to their apartment building. Morris said she was going to call the police and 

took out her phone. Defendant “snatched” the phone out of her hand and started running. 

Morris chased him but then abandoned the chase and started heading back to her apartment. 

¶ 16 Wilson testified that she was still able to see defendant when he ran up the street with 

Morris’s phone. As defendant and Morris were arguing, Wilson saw defendant holding a gun. 

Defendant’s right arm was extended, and he was pointing the gun at Wilson, who turned and 

ran but was shot in both legs. Wilson fell on the steps in the hallway. Defendant was about 15 

feet away from Wilson when he shot her. 

¶ 17 Police and an ambulance arrived, and Wilson was taken to the hospital. She explained that 

a bullet went through her right leg. The bullet that entered her left leg was removed during 

surgery. Wilson was released from the hospital three or four days later. A few days after she 

was released from the hospital, Wilson took her children to Tennessee where they stayed with 

defendant until he was arrested there. 

¶ 18 Wilson identified People’s Exhibit 5 as the gun that defendant shot her with and testified 

that she had previously seen defendant with that gun. 

¶ 19 Paramedic Kevin Farrow treated Wilson at the scene, and when he asked how she was 

injured, Wilson said that “her boyfriend shot her.” 

¶ 20 Detective Joseph McCarthy interviewed Wilson at the hospital, and Wilson said her 

boyfriend, defendant, had shot her. Wilson provided McCarthy with information about where 

defendant was living, but McCarthy was not able to locate him. McCarthy later learned that 

defendant was in Tennessee. McCarthy obtained an arrest warrant and traveled to Tennessee. 

¶ 21 The parties stipulated that defendant was arrested in Trenton, Tennessee, on August 6, 

2014. 
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¶ 22 The parties also stipulated that Dr. Michele Holevar would testify that Wilson arrived at 

Mount Sinai Hospital with gunshot wounds to both legs. Wilson underwent surgery on both 

legs, during which a bullet was removed from underneath her left kneecap. The bullet was held 

for police. Wilson was discharged on July 7, 2014, with medications and crutches, and was 

instructed to return in one week. It was further stipulated that Chicago police evidence 

technicians would testify that they recovered the bullet from the hospital and inventoried it, 

maintaining a proper chain of custody.

¶ 23 Officer Patrick Joyce testified that he received a call of a domestic disturbance at about 

11:20 p.m. on July 5, 2014. As he was responding to the call, he learned that a person had been 

shot. When Joyce arrived, he learned that Wilson had been shot in both legs. Wilson said her 

mother and boyfriend were involved in an argument and her boyfriend, whom Wilson named 

as defendant, had shot her twice. Joyce spoke with Brianna Lindsey and Ashley White on the 

scene. Although Joyce attempted to speak with her, Morris was very emotional and did not 

want to talk. 

¶ 24 On November 9, 2014, Joyce performed a traffic stop. During the stop, a passenger who 

wished to remain anonymous related that a family member was in possession of a firearm and 

they wished to turn it in to police. Joyce went to the address that the anonymous passenger had 

provided and recovered a weapon, which he identified as People’s Exhibit 5. 

¶ 25 On cross-examination, Joyce explained that he later learned that Ashley White was Jenail 

White. The traffic stop occurred four months after the shooting and very close to Morris’s 

apartment where the shooting had taken place. 

¶ 26 Evidence technician John Buczkiewicz testified that he processed the crime scene, took 

photographs, and recovered three cartridge cases. 

¶ 27 Illinois State Police forensic scientist Brian Zientek received a bullet fragment, three 

cartridges, and a firearm. He analyzed the evidence and determined that the bullet fragment 

and the three bullet cartridges were fired from the same firearm. He further determined that the 

bullet fragment and cartridges were fired from the semiautomatic handgun that Joyce 

recovered. Wilson identified that same gun as the weapon defendant used to shoot her. 

¶ 28 On cross-examination, Zientek stated that, to his knowledge, the firearm was not tested for 

fingerprints. 

¶ 29 Illinois State Police forensic scientist Lisa Gilbert received and analyzed the three 

discharged cartridge cases. There were no latent fingerprints on the cartridges suitable for 

comparison. 

¶ 30 The State rested, and defense counsel moved for a directed verdict on all counts, which the 

court denied. 

¶ 31 The defense recalled Joyce. When Joyce performed the traffic stop on November 9, 2014,

and recovered the firearm, he did not have gloves in his vehicle and did not stop at the police 

station to retrieve gloves. The distance from the traffic stop to where he recovered the gun was 

about 29 blocks, and a map showing the two locations was admitted into evidence. Joyce 

inventoried the firearm, checked with the “gun desk” that the firearm had not been reported 

stolen and was not registered in Chicago, and sent it to forensics. He did not request fingerprint 

testing on the firearm. 
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¶ 32 On cross-examination, Joyce explained that the firearm was not recovered from a crime 

scene and he had no reason to believe it was evidence in this shooting at the time it was turned 

in to him. 

¶ 33 The defense presented a certified copy of Jenail White’s 2016 conviction for manufacture 

and delivery of 15 to 100 grams of heroin. The defense then rested. 

¶ 34 Following arguments, the jury deliberated and found defendant guilty of armed robbery. 

The jury also found defendant guilty of attempted first degree murder of Wilson, finding that 

he personally discharged a firearm causing great bodily harm to Wilson, and aggravated battery 

with a firearm of Wilson. The jury found defendant not guilty of attempted first degree murder 

of Morris and White. 

¶ 35 The case was continued for posttrial motions and sentencing. In the interim, defendant was 

charged with aggravated battery of his trial counsel. The court denied the public defender’s 

motion to withdraw due to the new charge, explaining that the public defender’s office had a 

conflicts unit for such situations. A new public defender appeared for defendant and requested 

a fitness evaluation. Following a fitness hearing, the court found defendant fit for sentencing.

¶ 36 After a sentencing hearing, the court sentenced defendant to consecutive terms of 31 years 

in prison for attempted murder and 21 years in prison for armed robbery. For sentencing 

purposes, the count of aggravated battery with a firearm merged with the attempted murder 

conviction. Defense counsel filed a motion to reconsider the court’s finding of severe bodily 

harm. The court denied the motion, finding the State proved severe bodily injury beyond a 

reasonable doubt and consecutive sentences were therefore proper.

¶ 37 III. ANALYSIS

¶ 38 On appeal, defendant first argues this court should reverse his conviction for armed robbery 

with a firearm because there was no evidence that he was in possession of a firearm when he 

took Morris’s cell phone. Defendant asks this court to reduce his conviction to simple robbery 

and remand for resentencing.

¶ 39 The standard of review on a challenge to the sufficiency of the evidence is whether, after 

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact 

could have found the essential elements of the crime beyond a reasonable doubt. People v. 

Wheeler, 226 Ill. 2d 92, 114 (2007). This standard applies to all criminal cases, whether the 

evidence is direct or circumstantial. People v. Herring, 324 Ill. App. 3d 458, 460 (2001). It is 

up to the trier of fact to determine the witness’s credibility, the weight given to their testimony, 

to resolve conflicts in the evidence, and to draw all reasonable inferences from the evidence. 

People v. Ortiz, 196 Ill. 2d 236, 259 (2001). All reasonable inferences must be allowed in favor 

of the State. People v. White, 2017 IL App (1st) 142358, ¶ 14. In determining whether an 

inference is reasonable, the trier of fact need not look for all possible explanations consistent 

with innocence or “ ‘be satisfied beyond a reasonable doubt as to each link in the chain of 

circumstances.’ ” People v. Smith, 2014 IL App (1st) 123094, ¶ 13 (quoting Wheeler, 226 Ill. 

2d at 117). Instead, it is sufficient if all of the evidence, taken as a whole, satisfies the trier of 

fact that the defendant is guilty beyond a reasonable doubt. Id. While we will consider all of 

the evidence, we will not retry the defendant on appeal. See Wheeler, 226 Ill. 2d at 117; People 

v. Evans, 209 Ill. 2d 194, 209 (2004). Accordingly, we will not overturn a conviction unless 

the evidence is so unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt 
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of the defendant’s guilt. People v. Brown, 2013 IL 114196, ¶ 48; People v. Lloyd, 2013 IL 

113510, ¶ 42. 

¶ 40 A person commits armed robbery when he knowingly takes property by the use of force or 

threatening the imminent use of force and “carries on or about his or her person or is otherwise 

armed with a firearm.” 720 ILCS 5/18-1(a), 18-2(a)(2) (West 2014). Thus, “the language of 

the armed robbery statute merely requires the prosecution to show that the accused carried or 

possessed a dangerous weapon while committing a robbery.” People v. Thomas, 189 Ill. App. 

3d 365, 370 (1989). The statute does not require the State to prove that the firearm be displayed 

or used. Id.; People v. Addison, 236 Ill. App. 3d 650, 655 (1992). A conviction for armed 

robbery may be sustained even where the weapon was not seen or accurately described by the 

victim. People v. Elam, 50 Ill. 2d 214, 220 (1972). However, it is necessary that the offender 

actually possess a dangerous weapon at the time of the offense. People v. Fiala, 85 Ill. App. 

3d 397, 400 (1980). The presence of a weapon during commission of a robbery must be 

established beyond a reasonable doubt to support a conviction for armed robbery and may be 

established by circumstantial evidence. People v. Dunivant, 96 Ill. App. 3d 62, 64 (1981); see 

People v. Coleman, 128 Ill. App. 3d 538, 545 (1984) (some physical manifestation of a weapon 

is required or some other evidence from which the presence of a weapon may be inferred).

¶ 41 After considering the evidence in the light most favorable to the State, we find that a 

reasonable trier of fact could conclude that defendant possessed a gun at the time he took 

Morris’s phone from her hand and ran with it. When defendant took Morris’s phone and ran 

up the street, Morris chased after him, and Wilson testified that she was still able to see 

defendant at this time. After what Morris testified was “five minutes or so,” and White testified 

was “not even a couple of minutes,” Wilson began screaming that defendant had a gun. Wilson, 

Morris, and White all testified they saw defendant with a gun. Defendant fired the gun three or 

four times, hitting Wilson twice, once in each leg. Accordingly, as defendant pulled out a 

handgun and shot multiple times, hitting Wilson twice, the State presented sufficient evidence 

that defendant carried a firearm on or about his person at the time he took Morris’s phone. 

¶ 42 In reaching this conclusion, we find Fiala, 85 Ill. App. 3d 397, and Dunivant, 96 Ill. App. 

3d 62, relied on by defendant, to be distinguishable. In both Fiala and Dunivant, the victims 

did not see weapons and the courts found some evidence from which it could have been 

inferred that the defendants did not carry the weapons on or about their persons during the 

robberies. See Fiala, 85 Ill. App. 3d 397; Dunivant, 96 Ill. App. 3d 62. In Fiala, the court noted 

that, although the eyewitnesses believed the defendant was armed, none of them observed a 

weapon when defendant robbed a grocery store. 85 Ill. App. 3d at 398-99. Within minutes of 

the robbery, police approached defendant’s vehicle and observed him reaching under his seat, 

possibly for a weapon. Id. at 399. Following a high-speed vehicle chase and a foot chase, the 

defendant was apprehended, and a gun was located in the bushes nearby. Id. at 399-400. The 

court in Fiala noted that the officers had observed the defendant reaching in his car, from 

which it could be inferred that defendant was reaching for a gun after the robbery. Id. at 401. 

Similarly, in Dunivant, the victim did not observe any weapons, and although he had a good 

opportunity to observe the offenders, he did not observe defendant as one of the offenders who 

was present during the offense. 96 Ill. App. 3d at 62-63. The defendant in Dunivant was 

arrested in the vehicle with the offenders five to seven minutes after the offense, and a weapon 

was recovered from where defendant “had been observed to be leaning forward with his hands 

on the floorboard between his feet.” Id. at 63.
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¶ 43 Contrary to defendant’s assertion, in this case there is no evidence that he left and “returned 

to the scene.” Significantly, Wilson testified she was still able to see defendant during the time 

that he ran up the street with Morris’s phone. Defendant relies on Morris’s testimony, that he 

pulled out a gun “maybe five minutes or so” after Morris began to walk back to her residence,

to argue that he had left and returned to the scene, apparently claiming that he could have 

become armed during this time. Although Morris’s and White’s testimony varied on how many 

minutes passed before defendant displayed the firearm, there was no evidence that he had left 

and returned to the scene. Wilson testified that she was still able to see defendant when he took

Morris’s phone and ran up the street with it. All three witnesses then saw defendant holding a 

gun and heard three to four gunshots, two of which hit Wilson. Thus, in contrast to Fiala and 

Dunivant, here there was evidence from which the trier of fact could reasonably infer that 

defendant carried a firearm on or about his person during the robbery. See Elam, 50 Ill. 2d 214 

(affirming conviction for armed robbery where victim did not see a knife, but believed 

defendant was armed with a gun, and defendant possessed a knife but not a gun when he was 

apprehended less than 10 minutes later, one and one-half blocks from the scene of the crime, 

standing on a street corner); People v. Coleman, 345 Ill. App. 3d 1029, 1033 (2004) (upholding 

conviction for armed robbery where victim did not see a weapon and did not know what cut 

her, but victim was cut during the offense and one of the assailants had indicated she was going 

to cut her).

¶ 44 Defendant next argues that the trial court failed to comply with Rule 431(b) during jury 

selection. Defendant concedes that he has forfeited review of this claim by failing to raise it at 

trial and in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (failure to 

raise an issue in a written motion for a new trial results in a waiver of that issue on appeal). He 

nevertheless urges this court to review the issue under the plain error doctrine. 

¶ 45 A reviewing court may consider an unpreserved error where a clear or obvious error 

occurred and one of two circumstances exist: (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) the “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; 

People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). 

¶ 46 The initial step in a plain error analysis is determining whether a clear or obvious error 

occurred at trial. Sebby, 2017 IL 119445, ¶ 49; Piatkowski, 225 Ill. 2d at 565. If so, then under 

the first prong of plain error we must determine whether defendant has shown “that the 

evidence was so closely balanced the error alone severely threatened to tip the scales of 

justice.” Sebby, 2017 IL 119445, ¶ 51; People v. Herron, 215 Ill. 2d 167, 187 (2005). Prejudice 

is not presumed under the first prong of plain error, and defendant bears the burden of showing 

that the error was actually prejudicial or, in other words, that the evidence was closely 

balanced. Sebby, 2017 IL 119445, ¶ 51; Herron, 215 Ill. 2d at 193; see Piatkowski, 225 Ill. 2d 

at 566.

¶ 47 Defendant argues that the trial court erred by failing to strictly comply with Illinois 

Supreme Court Rule 431(b)(3) (eff. July 1, 2012). In People v. Zehr, 103 Ill. 2d 472, 477 

(1984), our supreme court stated that 

“essential to the qualification of jurors in a criminal case is that they know that a 

defendant is presumed innocent, that he is not required to offer any evidence in his own 
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behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to 

testify in his own behalf cannot be held against him.” 

These principles have been codified in Rule 431(b), which requires that during voir dire

examination of prospective jurors: 

“The court shall ask each potential juror, individually or in a group, whether that juror 

understands and accepts the following principles: (1) that the defendant is presumed 

innocent of the charge(s) against him or her; (2) that before a defendant can be 

convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that 

the defendant is not required to offer any evidence on his or her own behalf; and (4) that 

if a defendant does not testify it cannot be held against him or her; however, no inquiry 

of a prospective juror shall be made into the defendant’s decision not to testify when 

the defendant objects. 

The court’s method of inquiry shall provide each juror an opportunity to respond to 

specific questions concerning the principles set out in this section.” Ill. S. Ct. R. 431(b) 

(eff. July 1, 2012).

¶ 48 In this case, the trial court asked potential jurors individually and in groups whether they 

“agree with and accept” that the State has the burden of proof beyond a reasonable doubt. The 

court further asked potential jurors whether they “agree with and accept” that the defense has 

no burden, defendant is presumed innocent, and he does not have to testify or call witnesses. 

In one instance, defendant argues that the court informed a potential juror that the defense has 

no burden, he is presumed innocent, and he does not have to testify or call witnesses but only 

asked the potential juror “do you agree with and accept” the proposition that defendant’s 

decision not to testify could not be held against him. 

¶ 49 Trial courts are required to ask prospective jurors whether they both understand and accept 

Rule 431(b)’s principles. See People v. Belknap, 2014 IL 117094 ¶ 46 (failure to ask whether 

the prospective jurors understood the rule’s principles constituted error alone); People v. 

Wilmington, 2013 IL 112938, ¶ 32 (failure to ask prospective jurors if they understood the 

rule’s principles was “error in and of itself”). As our supreme court noted in Wilmington, it 

may be arguable that asking jurors whether they disagreed with the Rule 431(b) principles is 

tantamount to asking them whether they accepted those principles. Wilmington, 2013 IL 

112938, ¶ 32. However, the trial court’s failure to ask whether the jurors understood the 

principles constitutes error alone. Id.

¶ 50 Having determined that a clear and obvious error occurred at trial, we now consider 

whether the evidence in this case is closely balanced. Plain error under the closely balanced 

prong “requires a commonsense, contextual analysis of the totality of the evidence.” Belknap, 

2014 IL 117094 ¶ 49.

¶ 51 Evidence may be closely balanced when a case turns on a credibility determination between 

conflicting testimony. See Sebby, 2017 IL 119445, ¶ 63; People v. Naylor, 229 Ill. 2d 584, 

606-08 (2008) (finding evidence closely balanced where defendant’s version of events 

conflicted with that of testifying officers and both accounts were credible). However, there is 

no credibility contest where, as here, one party’s account is “unrefuted, implausible, or 

corroborated by other evidence.” See People v. Montgomery, 2018 IL App (2d) 160541, ¶ 31. 

Where a case does not involve competing witnesses and the jurors are not asked to determine 

“relative credibility,” the factfinder’s responsibility to assess witness credibility does not 
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automatically make the evidence closely balanced. See People v. Hammonds, 409 Ill. App. 3d 

838, 861-62 (2011). 

¶ 52 Nonetheless, defendant argues that the evidence was closely balanced on his conviction for 

armed robbery because, “None of the State’s eyewitnesses testified that [he] used a weapon 

during the robbery, and it was not until minutes later, after he ran down the block and the 

witnesses lost sight of him, that he returned to the scene with a gun.” As discussed above, 

contrary to defendant’s claim, Wilson testified that she did not lose sight of defendant. We find 

that where all three eyewitnesses observed defendant with a gun soon after he grabbed the 

phone and ran away, the evidence was not closely balanced. 

¶ 53 Defendant further argues that the evidence on his conviction for attempted murder was 

closely balanced. Defendant claims that the fact that he shot Wilson in each of her legs, rather 

than aiming at her head, shows that evidence of his intent to kill was close.

¶ 54 A person commits the offense of attempted first degree murder when he, with intent to 

commit murder, takes a substantial step toward committing murder. 720 ILCS 5/8-4(a), 9-

1(a)(1) (West 2014). Proof of a specific intent to kill is a necessary element of the offense. 

People v. Hopp, 209 Ill. 2d 1, 13 (2004); People v. Vega, 2018 IL App (1st) 160619, ¶ 41. 

However, it “is rarely proven through direct evidence.” People v. Viramontes, 2017 IL App 

(1st) 142085, ¶ 52. The defendant’s specific intent to kill may be inferred from the 

circumstances, including the character of the assault and the use of a deadly weapon. Id.; 

People v. Anderson, 108 Ill. App. 3d 563, 566 (1982). “Specific intent to take a human life is 

a material element of the offense of attempt murder, but the very fact of firing a gun at a person 

supports the conclusion that the person doing so acted with the intent to kill.” People v. Seats, 

68 Ill. App. 3d 889, 895 (1979); see Vega, 2018 IL App (1st) 160619, ¶ 41.

¶ 55 Here, the State presented evidence that defendant pointed a gun at Wilson as he and Morris 

struggled. Morris testified that defendant extended his right arm around her, aiming at Wilson 

from a distance of about 15 feet. Defendant fired the gun three to four times, hitting Wilson 

twice, once in each leg. Proof that the defendant discharged a firearm at Wilson supported the 

conclusion that he intended to kill her. See Seats, 68 Ill. App. 3d at 895; see also People v. 

Cloyd, 152 Ill. App. 3d 50, 54-56 (1987) (evidence of the defendant’s intent to kill was not 

closely balanced but “blatantly clear” where, although the defendant testified he did not intend 

to kill the victim, the witnesses testified that the defendant held a gun against the victim’s head 

and fired four times at close range); People v. Mosley, 85 Ill. App. 3d 870, 875 (1980) (evidence 

was “not close factually” and the fact that defendant fired a gun at the victim from a distance 

of 12 to 15 feet supported the conclusion that defendant acted with intent to kill). Defendant 

claims that “the fact that he hit [Wilson] in the legs shows that the issue of intent to kill is 

close.” However, “[p]oor marksmanship is not a defense to attempted murder.” People v. 

Teague, 2013 IL App (1st) 110349, ¶ 27; see Cloyd, 152 Ill. App. 3d at 55 (stating, “The fact 

that [the victim] successfully avoided being shot does not make the evidence closer on the 

question of defendant’s specific intent to kill.”). 

¶ 56 Viewing the evidence in a commonsense manner in the context of the totality of the 

circumstances, we find that the evidence in this case was not closely balanced. Accordingly, 

defendant was not prejudiced by the trial court’s error in questioning potential jurors, and no 

plain error occurred.
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¶ 57 IV. CONCLUSION

¶ 58 For the forgoing reasons, defendant’s convictions and sentences are affirmed.

¶ 59 Affirmed.