## 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 . Rodrigu ez , 2012 IL App (1st) 072758- B

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. J UAN RODRI GUEZ , Def endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-07-2758

Filed Rehea ringdenied J une 29, 2012

August 30, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by 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 forf

eited the State’s err or in failing to question the prospec tive jurors about all of the Zehr principles, and th e err oneous admission of defe ndant’s prior juvenile adjudication for purposes of impeachme nt was h ar m less, espec ially when the prior adjudication was not the onl y b as i s for the State’ s attack on de fenda nt’s cre dibilit y

.

Dec ision Under Review App ea l from the Circuit Court of Cook County
, No. 04-CR-18035; the Hon. Diane Gordon Cannon, Judge , presiding

.

J udg ment Affir med; mitti mus corre cted.Counsel on

Appea l Michae l J

. Pell et i er, Patricia Unsinn, and Brian Carroll, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (James E. Fitzge rald and Nanc y Colletti , Assistant St ate’ s Attorney s, of counse l), for the People.

Panel J USTI CE PAL MER delivered the judgme nt of the cour t, with opinion.
J ustice McB ride c oncurr ed in the judgment and opinion. Presiding Justice Gordon dissented, w ith opinion.

OP INION

¶ 1 Def

endant Juan Rodrigue z was found guilty by a jury of the first degree murder of David Reyes, the a g g ravated battery with a fire arm of Rosendo D iaz and ag gravated discharg e of

a firearm

. He was sentenc ed to consec utive terms of 50, 6 and 6 year s’ imprisonment. He
argues on appea l that: (1) the trial court deprive d him of his right to a fair trial when it denied his motion in limine to bar the State from using a juvenile adjudication as impeachme nt; (2) the tri al co urt d ep ri v ed him of a fair trial when it g ave the jury a cer tified copy of this adjudication but not copies of convictions of the State’s witnesses; (3) the State did not prove him guilty beyond a rea sonable doubt; (4 ) h i s m i t timus should be amende d to ref lect an additional 4 day s of sentenc ing cre dit a nd that he was sentenc ed to a single 50-year term of imprisonment for first degree murder; and (5) the trial court’s failure to strictly comply with Supreme Court Rule 431(b) (I ll. S. Ct. R. 431(b) (eff

. May 1, 2007)) requires rever sal and

rema nd for a new trial. We aff

irmed defe ndant’s conviction in People v. Rodriguez
, 408 I ll. Ap p

. 3d 782 (2011). Under direc tion of the supreme court pursuant to its supervisor y 1 authority
, we vacated that judgme nt and now rec onsider our deci s i o n in light of People v. Villa
, 2011 I L 110777. People v. Rodriguez
, No. 112269 (I ll. J an. 25, 2012). We aff irm and

corr ect de fenda

nt’s mitti mus.

¶ 2 BA CKGROUND ¶ 3 Be fore trial, defe nse counsel filed a motion in limine to bar the State fr o m u s i n g as impeachme nt defe ndant’s juvenile a djudication of ag gravated unlawf ul use of a w eapon. ¶ 4 J ury selec tion beg an on August 14, 2007. The court rea d t h e charg es to the venire en

masse and admonished them that defe ndant is presumed innocent of the charg es ag ainst him

J ust ic e Robe rt Cahi ll ori ginal ly sat on the pan el of thi s app eal and aut hor ed the dis pos it ive 1 opi nio n. J ust ic e Cahil l pass ed away on December 4 , 201 1. I n hi s pl ace on r eco nsi der at ion , J ust ic e Stu art E. Pal m erhas re ad t he b ri ef s and r eco rd.

-2-and that the State has the burden of proving defe ndant guilty beyond a rea sonable doubt. The

court then a dmonished the first pane l of prospec tive jurors: “Should the State meet their burden of proof beyond a rea sonable doubt is there
any body seate d in the jury box who could not or would not follow the law as I g ave it to
you that g overns the case , g o back into the jury room with your fellow jurors and sign a verdic t form of guilty ? ”
One juror expressed conce rn about her ability to rea ch a decision but said she would follow the law. The court c ontinued: “Any body else who co u ld not or would not follow the law, if the State met their burden of proof, sign [a] verdic t form of guilty ?
No re sponse. Should the State fail to meet their burden of proof beyond a rea sonable doubt, is there
anyone seate d in the jury box who could not or would not follow the law that g overns this case, g o back into the jury room with your fe llow jurors and sign a verdic t f orm of not guilty ?
No re sponse.” The court and attorney s then asked g ener al questi ons of the potential j u ro rs

. At t he end of questioning, the court a dmonished the potential jurors:
“La dies and gentleme n, the defendant in the case has a right t o testify

. He als o h as a right to remain silent, not testify . Should he exercise that right, is there any body who would hold that ag ainst him?
No re sponse.” Five jurors wer e selec ted from that panel. The court admoni s h ed the second panel of
prospec tive jurors in the same way it admonished the first panel. Seven j uro rs and one alternate wer e selec ted from that panel. The court admonished the third panel of prospec tive jurors in a simil ar fashion. One alternate was selec ted from the third panel. Neither defe nse counsel nor the prosec utor objected to the method of selec tion or asked the court to inquire further in acc ordanc e with Rule 431(b). ¶ 5 Def

endant’ s convictions arose from the J une 27, 2004, shooting of Re y es an d Diaz as they drove with friends to a nightc lub. At trial, Virg inia Rojas testified that about midnight

on that date, she was with Dea n Villera, her boy friend at t h e t i m e, and five of his friends, driving to a nightclub in Ford City

. Rojas said she was riding in the m iddle passeng er seat of Villera’ s pickup truck, Villera was driving and Ernest Villa was in the passeng er seat. Aside from Raul Rivera, Rojas did not know the three other persons, which included Reyes and Diaz, seated in the bed of the truck. ¶ 6 As the g roup heade d west on 59th Str ee t , t h ey s t o p p ed fo r a t raffic light at the intersec tion of Pulaski R oad. Rojas t estified she saw about five boy s standingin front of a house to her right. She hear d them arg uing with Villera’ s friends in the bed of the truck. As they did so, she saw defe ndant emer g e from a g angway on the side of the house. She hear d three gunshots befor e Villera pushed her head down and drove awa y

. She said that although it was dark outside, there wer e streetlights in the are a and she wa s able to see defe ndant’s

-3-fac e as he walked out of the g angway

. ¶ 7 Villera’ s truck was stopped by an unmarke d police car a few blocks from the scene of the shooting. Rojas acc ompanied police to the station at 51st Street and W en t worth Avenue wher e she identified defe ndant in a lineup as the shooter. Sh e also identified defe ndant at trial. Rojas testified that she was familiar with defe ndant and rec ognized him beca use she had
met him at a party sometime before the shooting, and he had helped her afte r some g irls “jumped” he r. ¶ 8 On cross-e x amination, Rojas a cknowledg ed that her obse rvations of the shooting wer e made within a “sec ond or two.” She also acknow ledg ed she did not see a gun in defe ndant’s hand or see him shoot at anyone. She said she was only able to rec ognize defe ndant from the
group of pe ople standingin front of the house beca use she kne w who he w as. ¶ 9 Diaz testified that he was convicted of ag gravated unlawful use of a wea pon in 2004 and that he was a member of the Satan Disciples street g ang , who wer e rivals of the Saints g ang

. He said that o n t h e d at e o f t h e shoot ing he was seate d in the bed of Vil lera ’s pi ckup truck along with L

uis Torre s, Reyes and Rivera, all of whom wer e also Satan Disciples. At the intersec tion of 59th Street and Pulaski Road, Diaz saw about five persons, i n cl u d i n g defe ndant, standing on the passeng er side of the truck in front of a house. The groups beg an to yell “g ang sloga

ns” at eac h other and exchang e “g ang [ha n d ] s i gn s

. ” As they did so, defe n dant ran toward the house. Diaz could not reme mber if defe ndant returne d from the house bef ore the shooting. ¶ 10 After the g roups yelled an d ex ch an ged g ang signs, an “older man” appea red on the
passeng er side of the truck and asked Diaz to leave

. At that time, Diaz felt his fac e g et war m and hear d about four gunshots. He was subsequently treated at Christ Hospital for a gunshot wound to his left chee k. After leaving the hospital, he went to the police station at 51st Street and Wentworth Avenue
, wher e he identified defe ndant in a lineup as th e p erson he saw runningawa

y from the sc ene. ¶ 11 Diaz acknow ledg ed that on the date of the shooting, h e p ro v i d ed As s i s t ant S tate’s Attorney (ASA) Fr ed Sheppard with a signe d handwritten statement in which he said he saw d ef en d ant return from the g angway on the side of the house with his right hand under his shirt as if he wer e holding a gun. He also acknow ledg ed that ab o u t t wo weeks afte r the shooting, he testified in front of a grand jury that he saw defe ndant return from the g angway “with his hands under his shirt.” He further testified in front of the grand jury that he “didn’t

see the gun, but [defe ndant] ha d his ha nd under his shirt” a

nd he “thought [defe ndant] wa s g oing to shoot.” D iaz admitted he did not know if defe ndant was the shooter. ¶ 12 On cross-e x amination, Diaz said that befor e leaving for the nightc lub, he, Villera, Villa and Torre s wer e at a block party , drinking

. Diaz said he had betwee n three and six drinks at the party and was leg ally drunk. He acknow ledg ed he did not see a gun in defe ndant’s hand

or anyone shooting, and that, at the time of his testi mony , he could not reme mber if defe ndant returne d from the g angway beca use he did not “re member a lot of things from that night.” He also said he was not on medication when he g ave his statement to ASA Sheppard and that he be lieved he w as not fre e to leave the police station until he g ave a statement. ¶ 13 Detec tive Michae l Hug hes testified that he was in the room with Diaz at Are a 1 police

-4-headqua rters when Diaz vie wed a lineup sever al hours afte r the shooting. Hughes said that Diaz identified defe ndant as “ the per son holding the gun.” ¶ 14 Torre s testified he was convicted of aggravated unl awf ul use of a weapon in 2002 and
ag gravated unlawf

ul use of a w eapon by

a fe lon in 2003. Torre s said that at the time of the shooting, he was a

member of

the Satan Disciples stre et g angand wa s seated in the bed of Villera’ s pickup truck along with Diaz, Reyes and Rivera. At the intersec tion of 59th Street and Pulaski Road, Torre s saw about five persons, including de fenda nt, standing in front of

a house on the passeng er side of the truck. Torre s identified defe ndant in open court. The
groups exchang ed g ang sloga ns and g ang signs. As they did so, defe ndant ran into a g angway

. A s h o rt time later, a bald-he aded man came out of the house, followed by defe ndant. The man yelled at Torre s “don’t start [any ] problems” and as k ed h i m t o leave

. Torre s then hear d a gunshot and looked at defe ndant. Torre s said he saw defe ndant with his

arms extended in front of him and sparks coming from his han d s

. He hear d the sound of brea king g lass. The g roup then sped awa y westbound on 59th Street. As they did so, Torre s noticed Diaz was bleeding from his left chee k and Reyes was “lea ning down” with blood on the right side of his back. ¶ 15 T h e gro up was stopped by an unmarke d police car a few blocks from the scene o f t h e crime. Torre s spoke with an office r about the shooting and acc ompanied the office r back to the scene

. Torre s and sever al office rs went to the backyard of the house wher e the shooting

occur red. Torre s identified defe ndant there as the shooter. He testified there wer e o th e r yo u ng Hispanic men in the backyard but only defe ndant had long hair and a tear drop tattoo by his
eye. Torre s then went to the police station at 51st Street and Wentworth Avenue
, wher e he spoke with detec tives abo u t t h e shooting and identified defe ndant from a lineup as the shooter. ¶ 16 On cross-e x amination, Torre s acknow ledg ed that at the time of the shooting, he was on mandatory supervised rele ase for his conviction of ag gravated unlawful use of a wea pon. He sai d t h at, as a member of the Satan Disciples, he hated the Saints street g ang and its members. A g irl had told him previously that a member of the L atin King s street g ang lived

on the bl ock near the intersec tion of 59t h S t re et and Pulaski Road. That m ember had long hair and a tear drop tattoo. Torre s acknow ledg ed that when the truck pull ed up to that intersec tion, he was looking for someone who fit that description. W hen he saw about five
persons stand i n g i n front of a house near the intersec tion, he told Reyes, Diaz and Rivera “look at them Kings right there.” The groups then beg an to ar gue. Torr es said he hated the L atin King s and the man he was looking for beca use he believed him to be a member of the
g ang

. He said his attention was drawn to defe ndant as he exit ed the g angway beca use Torre s

was looking for a person matching defe ndant’s description and beca use he assumed that defe ndant ran to the back of t he house t o get a gu n

. Torre s acknow ledg ed he did not see a gun in defe ndant’s hands. ¶ 17 The parties stipulated that, if called, Detec tive J ean Romic would testify she interview ed Torre s a couple hours afte r the shooting and he did not inform her that defe ndant ran into a
g angway next t o his house or that Torr es assumed he did so to retrieve a gun. ¶ 18 Assistant Medica l Ex aminer Dr. Michelle J ord e n o f th e Co o k Co u nty me d ic a l examiner’s

-5-office testified as an expert witness. She said she revie wed an autopsy repor t prepa red by Dr. Aldo Fusa

ro, who was no longe r employed with the Cook County medical examiner’s office

. An examination of Reyes’ body showed a gunshot wound to the mid-back. Dr

. J o rd en conclude d Reyes died a s a re sult of this wound and the manner of death was homicide. ¶ 19 The parties stipulated th at Chicag o police office rs J ohn Kaput and Thomas Slowinski administ er ed a gu nshot residue test on defe ndant. S amples of residue were collecte d from defe ndant’s right and left hands and then place d into a sea l ed ev idence envelope and inventoried. ¶ 20 For ensic scientist Ellen Connolly of the I llinois State Poli ce ’s forensic scienc e ce nter testified as an expert witness. She said she a naly zed the gunshot residue samples collecte d by Kaput and S l o wi nski. Connolly deter mined the residue samples collecte d from defe ndant’s left hand contained three unique particles that showed defenda nt discharg ed a firea rm, contac ted gunshot residue or was in the prese nce of a discharg ed firea rm. On crossexaminat i o n , Connolly explained that a person could test positive for gunshot residue by coming into contac t with a rec ently fired wea pon. She also said there is a possibili ty a person

can g et gunshot residue particle s on his hand if he is standing within three fee t of the wea pon when it is fired. ¶ 21 Be fore the State rested its c ase- in-chief
, defe nse counsel rene wed his motion to ba r the State from using as impeachme nt defe ndant’s juvenile adjudication for ag gravated unlawful

use of a wea

pon. Counsel argued that in People v. Montgomery
, 47 I ll. 2d 510, 268 N.E.2d 695 (1971), our supreme court adopted Fe dera l Rule of Ev i d ence 609 (51 F.R.D. 391 (1971))
, which prohibits the use of juvenile adj u d ic ations for purposes of impeachme nt when the witness is the acc used. Counsel also cited to People v. Kerns
, 229 I ll. App. 3d 938, 595 N.E.2d 207 (1992), in which the Four th District Appellate Court held that the admissibili ty of a juvenile adjudication is g overne d by Fe d er al Rule 609 as adopted in Montgomery

. Alternatively
, counsel argued that the probative value of the adjudication wa s o u tweighed by its prejudicia l eff

ect on the jury

. The State responde d that afte r Kerns was decide d, section 5-150(1) (c) of the J uvenile Court Act of 1987 (Ac t) (705 I L CS 405/5-150(1)( c) (West 2004))

was amende d to allow the use of juvenile adjudications for purposes of impeachme nt ag ainst the ac cused. ¶ 22 In denying defe ndant’s motion, the court noted it consid er ed th e fac ts of the case and found that the probative value of the adjudication outweighed its prejudicia l eff ect. The court pointed out that defe ndant was allowed to “spre ad to the jury” the Sta t e wi t n es s es’ convictions for unlawful use of a wea pon and that it would be improper “to now say that *** the jury is not allowed to hear

about [defenda

nt’s adjudication].” ¶ 23 The State rested. De fe n d an t m o v ed for a direc ted verdic t. The trial court denied the motion. ¶ 24 Martin Rodrigue z, defe ndant’s fathe r, testified on defe ndant’s behalf

. On the date of the shooting Rodrigue z was at his house at 3940 West 59th Street, drinking beer in the backyard with his friend Alexea Gutierre z. Def endant was in the baseme nt of the home with his friend Saul Har rer a. About midnight, defe ndant’s friend Shaid Fr austo and his cousin J uan Gar cia

arrived at the house and joined defe ndant and Harre ra i n t he baseme nt. About 20 minutes

-6-later, the g roup exited the house and walked toward the front yard, wher e Gar cia’ s car was

parke d. Rodrigue z said he could see the front of his house from the backyard and that, as the
group m ade its way to Gar cia’ s ca r, he saw a truck with about s ix people insi de drive past the g roup. Someone in the truck beg an yelling “g ang words” at defe ndant. Def endant and his friends yelled back. Rodrigue z’s friend Gutierre z went to the front of the house and told the people inside the truc k he did not want any problems. ¶ 25 Rodrigue z testi fied hewalked to the f ront of the house to help Gutierre z. As he did so, he sawsomeone shove G arc ia. Gar cia then r an to his car , opened the trunk and retrieved a
gun. Gar cia wa lked t o the curb and bega n shooting. Rodriguez said he saw Gar cia fire the
gun once and hear d four more gunshots as Gar cia ran toward the street. Def endant was “close by” whe n Gar cia shot. ¶ 26 After the shooting, defe ndant, Har rer a, Fr austo an d Ga rc i a ra n i n s i d e t h e h o u s e. Rodrigue z testified he told defe ndant to ask Gar cia to leave beca use “h e had cause d problems.” Rodrigue z saw Gar cia leave the house with a gun in his hand shortly afte rwa rd. About five minutes l at er , police office rs came to the backyard and place d Rodrigue z, Gutierre z, Fa

usto, Har rer a and defe ndant ag ainst a g ara g e. Def endant was arr ested afte r a boy with the police pointed to him. Rodrigue z said the police did not allow him to speak to them that night. ¶ 27 On cr o s s -e x am ination, Rodrigue z admitted his son was a member of the Saints street
g ang

. He said he did not tell the responding office rs that he saw Gar cia shoot at the t ruck beca use they yelled at him and did not allow him to talk. ¶ 28 Alexea Gutierre z testified that as defe ndant, Har rer a, Fr austo and Garcia walked towa rd Gar cia’ s car , a black pickup tr uck pulled up in front of

the house. The people in the be d of the t ruck started “throwing up [gang ] signs ” an d the t wo groups bega n to argue. Gutierrez

saw some of the boy s exit the bed of the truck, so he ran to the front of the house and asked them to leave

. One of the boy s “rippe d off” Gar cia’ s neckla ce. De fe n dant t hen ran toward the back of the house while Gar cia remove d a gun from t h e t ru n k o f h is car and beg an shooting. Gutierre z said defe ndant was behind him during the shooting. After he hear d about five shots, Gutierre z ran to the backyard. A few minutes later, police arrived o n t h e s cene with one of th e b oy s who was in the truck. The boy pointed out Gutierre z, Har rer a and defe ndant to the office rs, who transpo rt ed t h em to the police station at 51st Street and Wentworth Avenue . Gutierre z said Garcia left the house be fore police ar rived. ¶ 29 On cross-e x amination, Gutierre z said defen d an t ra n to the back of the house bef ore Gar cia remove d the gun from the trunk of his car and started shooting. He said that when the shooting started, defe ndant attempted to return to the front yard, but Gutierre z held him back. Gar cia tried to hand the gun to defe ndant after t h e s h ooting, but defe ndant did not take it. Gar cia then left the backyard, car rying the gun. Gutierre z acknow ledg ed he spoke to a detec tive a few hours afte r the shooting and did not inform her that Gar cia was the shooter. ¶ 30 Def

endant testified in his own behalf

. He said he was a member of the Saints street g ang and that they wer e rivals of t he S atan Disciples. On t he date of the shoot ing, he was in the baseme nt of his house with his friend Har rer a. About midnight, Garcia and Fr austo came to the baseme nt. The g roup left the baseme nt about 15 minutes later and walked to Gar cia’ s car ,

-7-which was parke d in front of defe ndant’s house. Def endant denied being in possession of a gun and said he did not see Ha rre ra, G arc ia or F rausto with a gun. ¶ 31 As defe ndant stood by the rea r passeng er side of Gar cia’ s car , he saw a dark pickup truck with about five boy s in the bed of the truck stop ne ar the car

. The boy s exit ed the truck and beg an yelling at defe ndant. When one of them yelled “g et the guy with the tear drop” tattoo, defe ndant ran into the g angway near his house. As he did s o, Gutierre z stopped him and asked h i m “w hat [was] g oing on.” Def endant then followed Gutierre z to the front of the house, wher e the yelling continued. He d en ied retrie ving a gun from the g angway befor e returning to the front yard. He saw one of the boy s “snatc h” Garcia ’s n ec k l ac e and Garcia retrie ve a gun from the trunk of hi s car

. Def endant said he saw Gar cia run past him on the sidewalk and shoot. After hearing the first shot, defe ndant stepped back into the g angway and hear d additional shots as Garc ia ra n toward the street. ¶ 32 Def

endant testified that Gar cia tried to hand the gun to him afte r the shooting, asking him to hide it. Defe ndant re fused, pushe d the gun awa y with his hand and told Gar cia to leave. Ga rc i a ev en tually left the house. Def endant was identified in the backyard by “one of the
guy s [who] jumped out of the truck” and ar rested. D efe ndant said he w as right-hande d. ¶ 33 On cross-e x amination, defe ndant initially testified that he spoke with detec tives afte r the shooting and told them that he saw Gar cia shoot at the truck. He then said that he hear d the
gunshots when he e ntere d his house. Def endant then a cknowledg ed that he did not tell the detec tives that he saw Gar cia shoot at the pickup truck beca use he did not want to g et Gar cia “in trouble.” Def

endant also acknow ledg ed he did not inform the d etectives that, afte r the shooting, Ga

rcia repe atedly

tried to hand him the gun and he pushe d it away

. ¶ 34 The State introduced a cer tified copy o f d ef

en d an t ’s 2003 juvenile adjudication for “ag g ravated unlawful use of wea pons.” The trial court admitted the ad j u d i cation into 2 evidenc e over

defe nse counse l’s objection. ¶ 35 Detec tive Romic testified in rebuttal for the State. Romic inter viewed Gutierre z on the date of the shooting. Gutierre z did not tell Romic he saw Gar cia shoot at the truck or that he held defe ndant back as Gar cia shot. Romic also said she had a conver sation with defe ndant

on the same date and he did not tell her he saw Gar cia shoot at the truck or that Gar cia tried to hand him the gun afte rwa rd. ¶ 36 During deliberations the jury sent a note to the tria l judge
, asking for the cer tified copy of defe ndant’s juvenile adjudication. Def ense counsel objected but asked that if the court did al l o w the jury to see the adjudication, the copy rea d “adjudicated guilty” of “ag gra v at ed unlawful use of wea

pons.” The court revie wed the cer tified copy of adj u d ication and explained:
“THE COURT: First pag e, J anuar y 6th, 2003. Second pag e is he is adjudicate d war d of the c ourt. We can r edac t that.

T he act ual ti tl e of thi s off

ens e is “[ a] ggra vated unl awf ul use of a weap on” (72 0 I LCS 5/2 4- 2 1.6 (W est 2002 ))

. However, the cer ti fi ed cop y of adj ud i c a ti on m is ta kenly re fe rs to the off ens e as “aggravatedunl awf

ul use of weap ons .”

-8-First pag e, second pag e is the order of probation. The third pag e is juvenile detention order ed. And more of a se ntencing

. I am inclined to just send the first pag e back which has the charg es. And if you want to add to the first pag e adjudication of guilty

. We w ill just send that pag e back with the charg es on it.”
Counsel also asked th e co urt to provide the jurors with the cer tified copies of the State’s witnesses’ convictions. In ref using to do so, the court noted “if they asked for them, I would
g ive them.” The court then provided the jurors with a reda cted copy of defe ndant’s juvenile adjudication, listi ng the charg es ag ainst him and that he was “adjudicated” guilty of “ag g ravated unlawf

ul use of we apons.” ¶ 37 After further deliberations, the jury found defe ndant guilty of first degree murder and that he personally discharg ed t h e fi rearm t hat prox imately cause d the death of R eyes. The jury also found defendant guilty of aggravated battery with a fi rea rm and aggravated di scharg e of a f irea rm. ¶ 38 At sentenc ing, the trial court denied defe ndant’s motion for a new trial. The court noted that it stood by it s ru l i n g to admit defe ndant’s juvenile adjudication for purposes of impeachme n t af

ter finding it more probative than prejudicia l. The court also noted that defe ndant’s adjudication was reda cted as defe n s e co u n sel reque sted and that, had the jury asked, the court would have provided it with the cer tified copies of the State’s witnesses’ convictions. The co u rt t h en merg ed “counts 5 and 6” (first degree murder) and sentenc ed defe ndant to 50 year s’ imprisonment for that offe nse. The court also imposed two six -year t erms for ag g ravated battery with a firea rm and ag gravated discharg e of a firear m t o b e

serve d consec utively

to eac h other a

nd the murder

sentenc e.

¶ 39 ANALYSI S ¶ 40 We first ad dre s s d ef en d an t ’s contention that he was denied his right to a fair a nd impartial jury beca

use the trial judge failed to question the prospec tive jurors about the four principles set forth in People v. Zehr
, 103 I ll. 2d 472, 469 N.E.2d 1062 (1984), and codified in Supreme Court Rule 431(b). Def endant claims that the trial court failed to ask the potential jurors whether they understood or acc epted the principle that: (1) he was presumed innocent; (2) the State was re qu i re d t o prove him guilty beyond a rea sonable doubt; (3) he was not require d to prese nt evidenc e; and (4) his failure t o testify cannot be held ag ainst him. Def endant maintains that the tria l court’s e rror require s automatic re versa l. The State does
not dispute that the trial court failed to strictly comply with Rule 431(b) but responds that the court’s substantial c ompliance with the r ule does not wa

rra nt automatic re versa l. ¶ 41 This issue is controlled by our supreme court’s decision in People v. Thompson
, 238 I ll. 2d 598, 939 N. E .2d 403 (2010). See also People v. Magallanes
, 397 I ll. App. 3d 72, 921 N.E.2d 388 (2009). We first note that defe ndant forfei ted revie w of the issue by failing to object to it at trial or raise it in a timely filed posttrial motion. Thompson
, 238 I ll. 2d at 611- 12 (citing People v. Enoch
, 122 I ll. 2d 176, 186, 522 N.E.2d 1124 (1988))

. As sug g ested in Thompson
, “[a] simple objection would have allowed the trial court t o co rr ect the err or during voir dire .” Thompson
, 238 I ll. 2d at 612. Although under the p l ai n -error rule

-9-defe ndant may by pass normal forf

eiture principles, he has failed to show the evidenc e is so clos ely balanc ed that the error threatens to tip the s cale s of j ustice aga inst him or the error has aff ecte d the fairne ss of his trial and challeng ed the integrity of the judicial p roce ss. Thompson
, 238 I ll. 2d at 612-14. The plain-er ror doctrine does not provide a basis for relax ing de fenda

nt’s forf eiture of this iss ue. ¶ 42 We next addre ss defe ndant’s challeng e to the s u ff i ci en cy o f t h e evidenc e. When a defe ndant challeng es the sufficie ncy of the evidence t o s u s t ai n a conviction, it is not the function of the revie wing court to retry the defe ndant. People v. Evans
, 209 I ll. 2d 194, 209, 808 N.E.2d 939 (2004). The revie wing court mu s t d e cide whether
, afte r viewing the evidenc e in the light most favor able to the prosec ution, a rational trier of fac t coul d h av e fo und the elements of th e crime beyond a rea sonable doubt. Evans
, 209 I ll. 2d at 209. We will not

re v e r s e a c o n

v iction unless the evidenc e is so unrea sonable, improbable or unsatisfac tory that it raises a r easona

ble doubt of the de fenda

nt’s guilt. Evans , 209 I ll. 2d at 209. ¶ 43 Her e, defe ndant argues that the State failed to prove him guilty beyon d a re asonable doubt beca

use he prese nted t h e testimony of three eyewitnesses, including himself, who testified Gar cia was the shooter . He c laims that the phy sical evidenc e and the testimony of all but one of the State’s witnesses was consistent with Gar cia being the shooter. Def endant maintains that the S tate’s only evidenc e aga inst h i m was the testimony of Torres, a twiceconvicted f

elon and membe r of a

rival g ang

. ¶ 44 Viewe d in the light most favor able to the prosec ution, we find the evidenc e sufficie nt to support a guilty verdic t. The rec ord shows that Rojas, Diaz and Torre s identified defe ndant

as one of the persons who shouted at them as they drove t o a n ightc lub. Rojas, Diaz and Torre s eac h described defe ndant as having long hair and a tear drop tattoo under his left eye. Rojas testified she was familiar with defe ndant beca use she had met him at a party sometime befor e the shooting. She said she saw defe ndant emer g e from a g angway on the side of the house in front of which he was standing and then hear d three gunshots. Diaz testified that on the date of the shooting, he provided an assistant State’s Attorney with a signe d, handwr itten
statement in which he said he saw defe ndant emer g e from the g angway with his hands under his shirt. Diaz acknow ledg ed that he testified in front of the grand jury that he “didn’t see the
gun, but [defendant] had his hand under his shirt” and he “thought [defendant] was g oing to shoot.” Torre s said he looked at defe ndant aft er h ea ri ng the first gunshot and saw him standing wi t h h i s ar ms extended and sparks coming from his hands. Torre s identified defe ndant as the s hooter a t the scene , from a lineup a nd at trial. De fenda

nt’s left hand a lso tested positive for gunshot residue. ¶ 45 Def

endant’ s challeng e to the sufficie ncy of the evidenc e essentially asks us to substitute our j udg ment for that of t he jury on cre dibilit y and re s o l v e the conflicts in the evidence in his favor. This we cannot do. See Evans , 209 I ll. 2d at 211 (it is the function of the trier of fac t and not the revie wing court to as s ess the cre dibilit y of witnesses, deter mine the
appropriate weight of the testimony and resolve conflicts or inconsistencies in the evidenc e). In rea ching its verdic t, the j ury h ea rd t he evidence and i nconsistencies defenda nt relies on
to support his sufficie ncy argument, including the testimony of defe ndant, defe ndant’s fathe r and Gutierre z, that Gar cia was the shooter. The jury was also made awa re that Torre s, who identified defe ndant as the shooter, was a twice- convicted felon and member of a rival g ang

.

-10-As the trier of fac t, the jury is in a superior position to this court to assess witness cre dibilit y

( People v. Adams
, 394 I ll. App. 3d 217, 232, 914 N.E.2d 490 (2009))
, and “ ‘may believe as much or as littl e as it plea ses of a w itness’s testimony ’ ” ( People v. Mejia
, 247 I ll. App. 3d 55, 62, 617 N.E.2d 799 (1993) (quot i n g P eo p le v. Beasley
, 54 I ll. App. 3d 109, 114, 369 N.E.2d 260, 264 (1977))

. Given the verdic t, it is clea r the jury found Torres m ore credible than defe ndant, defe ndant’s fathe r and Gutierre z. The matters raised by defe ndant in this case

wer e not of such c hara cter as to raisea re asonable doubt of his guilt. ¶ 46 In rea ching this conclusion, we have considere d the discrepa ncies in the testimony of the State’s witnesses. Def

endant asser

ts that the “testimony from the majo ri t y of the State’s
eyewitnesses was at best inconclusive as to the identi[ t] y of the shoo t er

. ” He claims that Rojas and Di az we re u nable to identify him as the shooter and that at trial Diaz could not

reme mber if de fenda

nt emerg ed fr om the g angway

. ¶ 47 Discre pancie s, omissions and bias g o to the weight of the testimony to be eva luated by the trier of

fac t. People v . Mendoza , 62 I ll. App. 3d 609, 616-17, 378 N.E.2d 1318 ( 1978). As mentioned, we will not substitut e our judgme nt for t h at o f the jury

. A single witness’s identifi ca t ion of the acc used is sufficie nt to sustain a conviction if, as here
, the witness viewed the acc used under circ umstances permitting a positive identification. People v. Slim
, 127 I ll. 2d 302, 307, 537 N.E.2d 317 (1989). ¶ 48 We also find unpersua sive defe ndant’s argumen t that no phy sical evidence linked him
to the shooting. Gunshot residue was found on defe ndant’s left hand. Although d ef en dant testified that he is ri gh t h an ded and that he pushed the gun awa y with his left hand when Garci a tried to hand it to him, the jury was fre e to reje ct this self-se rving testimony

. See P eople v. Johnston
, 267 I ll. App. 3d 526, 532, 641 N.E.2d 898 (1994). This asi d e, l ac k o f phy sical evidenc e and minor inconsistencies do not rende r the evidenc e so unrea sonable, improbable or unsatisfac tory to justif y re v ersa l of the jury ’s deter mination. See People v. W heele r , 401 I ll. App. 3d 304, 312, 929 N.E.2d 99 (2010); People v. Berland
, 74 I ll. 2d 286, 305-06, 385 N.E.2d 649 ( 1978). ¶ 49 Def

endant next argues that the trial court err ed in denying his motion in limine , seeking
to bar th e State from using as impeachme nt his juvenile adjudication. We consider this
argument toge ther with defe ndant’s related argument that the t rial court deprive d him of a fair trial when it g ave the jury a cer tified copy of his juvenile adjudication but not copies of the convictions of the State’ s witnesses. ¶ 50 This issue is controlled by o u r s up re m e court’s decision in Villa
, 2011 I L 110777. In Villa
, our supreme court held that juvenile adjudications are admissible ag ainst a testifying defe ndant for i mp eac hment only in acc ordanc e with Montgomery and its prog eny

. Villa
, 2011 I L 110777, ¶ 41. Specifica lly
, a defe ndant’s juvenile adjudication is admissi ble if a defe ndant opens the door to its admissibili ty by attempting to mislead the jury about his criminal background while testifying. Villa
, 2011 I L 110777, ¶ 45 (citing People v. Harris
, 231 I ll. 2d 582, 590 (2008)). ¶ 51 Her e, t h e S t ate conce des that defe ndant’s prior juvenile adjudication was improperly admitted for impeachme nt purposes. Def endant did not open the door to the admission of his prior juvenile adjudication under Villa

. Although defe ndant testified that he lied to detec tives

-11-an d did not tell them that he had seen Gar cia shoot at the truck, this testimony d o es n o t

amount to an attempt by defe ndant t o mislead the j ury about hi s criminal bac kground. See Villa
, 2011 I L 110777, ¶ 50. Acc ording ly
, the admission of defe ndant’s juvenile adjudication into evidence was e rror

. Villa , 2011 I L110777, ¶ 54. ¶ 52 The State argues, howe ver, that this error wa s harmless beca use, even if defe ndant had
not been impeache d with his juvenile adjudication, there is no rea sonable probability that he would have been acquitted of the charg ed offe nses. Def endant replies that the error was not harmless whe re, a s in Villa , his credibility “wa s critical to the State’ s case .” ¶ 53 The improper admission of evidenc e is harmless err or if no rea sonable probability exis ts that the verdic t would have been d i ff ere nt if the evidenc e in question had been excluded. People v. Lynn
, 388 I ll. App. 3d 272, 282, 904 N.E.2d 987 (2009). “When deciding whether

err or is harmless, a revie wing court may : (1) focus on the err or to deter mine whether it might have contributed to the conviction; (2) examine the other properly admitted evidenc e to deter mine whether it overwhelmingly supports the conviction; or (3) deter mine whether the improperly admitted evidenc e is mere ly cumulative or duplicates properly admitted evidenc e.” In re Rolandis G. , 232 I ll. 2d 13, 43, 902 N.E.2d 600 (2008). ¶ 54 Her e, afte r focusing on the err or and examining the properly admitted evidenc e, we f ind

no rea sonable probability that the jury ’s verdic t would have been differ ent if defe ndant had
not been impeache d with his juvenile adjudication. Although defe ndant was err oneously impeache d with his juvenile adjudication, the rec ord shows that in addition to defe ndant, the jury also hear d from defe ndant’s fathe r and Gutierre z, who both testi fi ed to a simil ar sequenc e of events as de fenda nt and that Gar cia wa s the shooter. Admittedly , the j ury was fre e to infer the possible interest and bias inhere nt in defe ndant’s father’s t es timony g iven his relationship with defe ndant. See People v. Swisher
, 60 I ll. App. 3d 452, 454, 376 N.E.2d 797 (1978). Howeve r, the same cannot be said of Gutierre z’s testimony that corr ob o r a te d that of defe ndant and defe ndant’s fathe r. Not ab l y , both defe ndant’s fathe r and Gutierre z wer e impeache d by their failure to tell the res p o n d i ng office rs on the night of the shooting that Gar cia was the shooter. Simi larly
, defe ndant, aside from being erroneously impeache d with his juvenile adjudication, was also impeache d with his failure to tell detec tives on the night of the shooting that Gar cia was the shooter. Acc ording ly
, the State’s err oneous impeachme nt of def en d an t with his juvenile adjudication was mere ly cumulative of the overa ll impeachme nt of the defe nse witn es s es

. As a result, it is unlikely that the err oneous impeachme nt of defe ndant with his juvenile adjudication contributed to the c onviction. ¶ 55 In rea ching this conclusion, we note that this is not a case wher e the entire defe nse re sted

on defe ndant’s erroneously impeache d testimony th at Gar cia was the s hooter. Rather, two other witnesses supported defe ndant’s claim. As mentioned, these two other witnesses, like defe ndant, wer e properly impeache d by their failure to tell police on the night of the shooting

or s h o rt ly there afte r that Gar cia was the shooter. Obviously
, g iven the verdic t, the jury reje cted the scena

rio as described by defe ndant’s fathe r and Gutierre z. See Evans
, 209 I ll. 2d
at 211 (it is the function of the jury to assess the cre dibility of witnesses). Simpl y stated, the defe nse case was extremel y we ak–eve n without the erroneous impeac hment of defendant. As wea k as it was, it was adequately prese nted through two other witnesses, as well as defe ndant. Unfortunate ly f o r d e f e n d a nt, e a c h a n d e v e ry defe nse witness, including defe ndant,

-12-was impeac hed by their failure t o identify Gar cia as the s hooter i n a ti mely manner

. There

is thus no probability that the jury would have acc epted defe ndant’s description of events had he not bee n impeache d by his juvenile adjudication. ¶ 56 We also consider the strength of the ev i d en ce prese nted aga inst defe ndant. The record shows that three witnesses implicated defe ndant in Reyes’ murder. Rojas sai d s he saw defe ndant emer g e from a g angway o n the side of the house in front of which the shooting

occur red and then hear d three gunshots. Diaz testified that he saw defe ndant run toward the back of the house befor e the shooting started. Diaz acknow ledg ed that o n the date of the shooting, he provided an assistant State’s Attorney with a signe d, handwritten statement in which he said he saw defe ndant emer g e from the g angway on the side of the house with his hands under his shirt. Diaz also acknow ledg ed that about two we eks af ter the shooting, he testified in front of the grand jury to the contents of his statement. He said that he “didn’t see the gun, but [defendant] had his hand under his shirt” and he “thought [defendant] was g oing
to shoot.” Detec tive Hughes testified that he was prese nt when Diaz viewed a lineup sever al hours afte r the shooting and that Diaz identified defe ndant as “the person holding the gun.” Torre s testified that he looked at defe ndant af t er h ea ri ng the first gunshot and saw him standing with his arm s ex t en d ed and sparks coming from his hands. Torre s identified defe ndant as the shooter at the scene , from a lineup and at trial. In addition to this testimonial evidenc e, def

endant’ s left hand teste d positive for gunshot residue. ¶ 57 Although defe ndant acknowledg ed that he was prese nt at the s cene of the shoot ing, he said that Gar cia was the shooter. Def endant attempted to explain the prese nce of gunshot residue on his ha

nd by saying that he pushed the gun awa y with his hand as Gar cia tried to g ive him the gun. Howeve r, defe ndant’s theory of the case was undermined by evidenc e that neither defe ndant, defe ndant’s fathe r nor Gutierre z told detec tives on the date of the shooting that Gar cia was the shooter or that defe ndant had come into contac t with the murder wea pon. ¶ 58 We also note that the State at no time pointed to defe ndant’s prior adjudication to argue that beca use of that adjudication, defe ndant had a propensity to commit the charg ed offe nse or that he wa s u nb el i ev able simply beca use he had been adjudicated delinquent on a prior

occa sion. People v. Mullins
, 242 I ll. 2d 1, 24-25, 949 N.E.2d 611 (2011); see also People v. Patrick
, 233 I ll. 2d 62, 75-76, 908 N.E.2d 1 (2009) (the defe ndant’s im p ro p er l y ad mitted prior convictions wer e not harmless wher e the impact of the convictions on the defe ndant’s

cre dibilit y

was c lear from the State’s focuse d and repe ated a rgument urg ing the jury

not to believe a three -time convicte d felon). ¶ 59 Taking all of the above fac tors into considera tion, we find the court’s err or in admitting defe ndant’s prior juvenile adjudication into evidence harmless be yond a re asonable doubt. See Mullins , 242 I ll. 2d at 27. ¶ 60 In rea chingthis conclusion, we have considere d Villa , cited by defe ndant in support of his argument, and find it distinguishable. In Villa
, afte r finding the admi s sion of the defe ndant’s prior juven il e a d ju d ic a ti o n e r roneous, the court reje cted the State’s argument that the er ror wa s harmless. Villa , 2011 I L 110777, ¶ 58. In doing so, the Villa court noted that the only evidenc e implicating the defe ndant in the charg ed offe nse wa s t h e d efendant’s
statement to police. Villa
, 2011 I L 110777, ¶ 56. The court in Villa pointed out that “no other

-13-witness testified as to defe ndant’s involvement” in the charg ed offe nse, “[n] o witness place d

defe ndant in the vehicle from which the shots wer e fired, and n o wi t n es s testified that defe ndant g ave the order to shoot.” Villa
, 2011 I L 110777, ¶ 56. The court noted that “[t] he State’s case rested on defe ndant’s statement, and the prosec utor’s ability to persua de the jury that defe ndant was not cre dible when, at trial, he testified that the inculpatory portions of his
statement we re f

alse.” Villa , 2011 I L110777, ¶ 56. The court noted that during the State’s closing and rebuttal argument, the prosecu t o r refere nced the defe ndant’s prior juvenile adjudication on three separ ate occa sions and urg ed the jurors to consider it when deter mining the defe ndant’s truthfulness. Villa
, 2011 I L 110777, ¶ 57. Given the lack o f ev i d ence implicating the defe ndant in the charg ed offe nse, combi ned with “the role the jury ’s

cre dibilit y deter

mination nece ssarily played in defe ndant’s conviction” and “the State’s
repe ated arg

ument that defe ndant’s juvenile adjudi cation was a basis to find his in-court testimony untruthful,” the Villa court conclude d that the err or was not harmless. Villa
, 2011 I L110777, ¶ 58. ¶ 61 Her e, unli ke Villa
, three witnesses i mplicated defe ndant i n Reyes’ murder. Two of the witnesses viewed a lineup sever al hours afte r the shooting an d i dentified defe ndant as the shooter. Also, unlike Vill a , here the jury hear d defe ndant’s version of events from two additional witnesses, defe ndant’s fathe r and Gutierre z, n ei t h er of whom was err oneously impeache d. As a result, we cannot say that defe ndant’s cre dibilit y in this case was as critica l as i t was in Villa

. Fur

ther, unli ke Villa
, in this case the S tate did not ref ere nce defe ndant’s juvenile adjudication during closing or rebuttal argument and urg e the jury to find defe ndant incre dible as a r esult of his adjudication. ¶ 62 We have also considere d People v. Naylor
, 229 I ll. 2d 584 (2008), cited by defe ndant in support of his argument, and find it distinguishable. Her e, u n l i k e Naylor
, defe ndant’s

erroneously admitted prior juvenile adjudication was not the State’s only at t ac k o n defe ndant’s cre dibilit y and his version of events. See Naylor
, 229 I ll. 2d at 607-08. Rather,

as m entioned, the State prese nted additi onal t estimonial and phy sical evidence to call int o question the vera city

of def endant’ s testimony

. ¶ 63 W e ar e unp er s u ad ed by defe ndant’s argument that the err or was not h ar m l es s as evidenc ed by the jury ’s reque st to see his adjudication during deliberations. Whil e we agree with defe ndant that when a jury makes a reque st, it must be assumed that the jury believes the subject matter of the reque st to be important for its deliberations ( People v. Bell
, 44 I ll. App. 3d 185, 194 (1976))
, we note that “the mere fa ct t h at t h e jury asked for a copy of [defendant’ s adjudication] does not cre ate a rea sonable probability
, or even a rea sonable possibili ty , that the jury relied on this [evidence] in rea ching its verdic t.” People v. Patterson
, 217 I ll. 2d 407, 435, 841 N.E.2d 889 (2005). Ac cording ly
, we decline to speculate

conce rning the extent of the role defe ndant’s juvenile adjudicatio n m ay have played in defe ndant’s conviction or about why the jury reque sted this evidenc e. Mullins
, 242 I ll. 2d at 28. ¶ 64 We are also unpersua ded by defe ndant’s argument that the trial cour t’s response to the jury question improperly highlighted this evidenc e beca use the court did not also provide the jury with cer

tified copies of convictions of th e S tate’s witnesses. Her e, the jury did not reque st to view the cer

tified copies of convictions of the State’s witnesses and the trial court

-14-was not require d to sua sponte provide them to the jury

. See Ave rett , 381 I ll. App. 3d at 1015

(citing People v. Sanders
, 368 I ll. App. 3d 533, 538, 857 N.E.2d 948 (2006) (the trial court’s
response need not g o further than the question posed by the jury )). ¶ 65 As a fina l matter, we reje ct defe ndant’s argument that the jury used his adjudication as substantive evidenc e o f h i s guilt. Although the trial court err ed in admitting defe ndant’s juvenile adjudication into evidenc e for impeachme nt purposes, there is no indication the jury used the adjudication as substantive evidenc e of defe ndant’s guilt. At the end of trial the jury

was instructed to consider the adjudication only as it may aff ect defe ndant’s believability as

a witness and not as evidenc e of his guilt

. The jury is presumed to follow the instruction
g iven by the cour t. People Taylor , 166 I ll. 2d 414, 438, 655 N.E.2d 901 (1995). ¶ 66 Def

endant f inally contends, and the S tate agr ees, that his mitti mus should be amended
t o re fl ect four additional day s of sentenc ing cre dit and a single conviction of first degr ee murder beca

use there was one victim and the two convictions wer e based on the same phy sical ac t. See People v . King , 66 I ll. 2d 551, 565-66, 363 N.E.2d 838 (1977). ¶ 67 A defe ndant is entitled to cre dit for time he spent in custody befor e sentenc ing. See 730 I L CS 5/5-8-7(b) (West 2006). The rec ord shows defe ndant was in custody from the date of his arr est on June 27, 2004, until the day he was sentenc ed, September 13, 2007, for a total of 1,173 day s. Be cause the mitti mus err oneously ref lects defe ndant was in custody for 1,169 day s, it must be corr ecte d. See People v. Miller
, 363 I ll. App. 3d 67, 80-81, 842 N.E.2d 290 (2005). The rec ord also shows defe ndant was found guilty of one count of first degre e murder. But the mitti mus e rrone ously ref lects defe ndant’s conviction of two counts of first degree murder an d m u s t b e am ended. People v. Pee ples
, 155 I ll. 2d 422, 496, 616 N.E.2d 294 (1993).

¶ 68 CONCLUSI ON ¶ 69 By our authority under Supreme Court Rule 615(b)( 1) (I ll. S. Ct. R. 615(b)( 1)), we va cate defe ndant’s less culpable conviction for murder under section 9-1(a )(2) of the Criminal Code of 1961 (Code) (count VI ) (720 I L CS 5/9-1(a) (2) (West 2004)) ( People v. Smith
, 233 I ll. 2d 1, 20, 906 N.E.2d 529 (2009))

. We order the cler k of the circ uit court to amend the mitti mus to refle ct: (1) de fenda

nt’s single conviction for f irst degree murder under sec tion 9-1(a) (1) of the Code ( count V) ( 720 I L CS 5/ 9-1(a )(1) (West 2004)) ( People v

. Lee , 213 I ll. 2d 218, 2 2 6 -2 7
, 821 N.E.2d 307 (2004)) and (2) 1,173 day s of cre dit, the corr ect number of day s defe ndant spent in custody befor e sentenc ing. People v. McCray
, 273 I ll. App. 3d 396, 403, 653 N.E.2d 25 (1995)

. ¶ 70 We affir

m the judgme nt of the trial cour t and cor rec t defe ndant’s mittimus

.

¶ 71 Affir

med; mitti mus corre cted.

¶ 72 PRES IDI

NG JUS TI CE GORDON, dissenting

. ¶ 73 Imust respec tfully dissent. ¶ 74 I n t h e ca s e at bar, there is no dispute that the trial court committed an err or and that

-15-defe ndant pre serve d that err or for our re view. ¶ 75 First, the State conce des that our supreme court’s rec ent decision in People v. Villa , 2011 I L 110777, ¶¶ 49-54, require s us to find that the trial court committed err or when it admitted defe ndant’s prior juvenile adjudication at trial. Supra ¶ 51. The majority also finds that the trial court committed e rror (supra ¶ 51), a nd Iagree . Thus, there is no dispute that a n err or

occur red. ¶ 76 Second, there is also no d i s p u t e th at d efe ndant prese rved this err or for our revie w. To
prese rve a claim for revie w, a defe ndant must both object at trial and include the alleg ed

err or in a written posttrial moti on. People v. Thompson
, 238 I ll. 2d 598, 611-12 (2010). In the case at bar, defe ndant filed a motion in limine befor e trial to preve nt the State from using defe ndant’s juvenile adjudication as impeachme nt. Supra ¶ 3. At trial, befor e the State rested in its case -in-chie f, defe ndant rene wed his motion, which the trial court denied. Supra ¶ 21. At sentenc ing, the trial court ag ain denied defe ndant’s posttrial motion, stating that it stood by its ruling to admit defe ndant’s juvenile a djudication. Supra ¶ 38. ¶ 77 Since the trial court committed an err or and the defe ndant p re s er v ed t he error for our

re view, the only question for us on appea l is whether this err or was harmless bey o n d a

rea sonable doubt. Thompson
, 238 I ll. 2d at 611 (“H armless-e rror analy sis is conducte d when a def endant ha s prese rved a

n issue for r eview.” ). ¶ 78 Since defe ndant prese rved the err or, the burden rests square ly on the State to prove that the err or was harmless. People v. Johnson
, 238 I ll. 2d 478, 4 8 8 (2 0 1 0) (def endants had “prope rly prese rved their claims of err or, thus requiring the State to show that the err ors wer e nonprejudicia l under a harmless erro r analy sis”); People v. Thurow
, 203 I ll. 2d 352, 363 (2003) (the “ ‘important differ ence ’ ” betwee n plain err or and harmless err or analy sis is that, in a harmless err or analy sis, the burden of persua sion is on the State (quoting United States

v. Olano
, 5 0 7 U. S

. 7 2 5, 734 (1993)) ). Howeve r, with all due respe ct, the majority improperly shifted this burden to defe ndant. The majority rests its decision, in larg e part, on its impression that the defe nse case at trial was “we ak.” Supra ¶ 55. That is simply not asking the right question. ¶ 79 The question for u s i s wh et h er t h e State has proven this err or harmless beyond a

rea sonable doubt. “Ha

rmless bey o n d a reasonable doubt” i s a high s tandar d to meet, and I find that it was not met in this case

. People v. Magallenes
, 409 I ll. App. 3d 720, 747 (2011) (“this is an extremely

high sta ndard” ). ¶ 80 In the case at bar, defe ndant admitted that he was on the scene

. The question for the jury
, plainly put, was whether defe ndant was the one with the gun. The evidenc e at trial was closely balanc ed on this issue. Three event witnesses testified for the State; and three event witnesses testified for

the def ense, inc luding de fenda

nt. ¶ 81 None of the State’s witnesses testif i ed t h at t h ey o b s er v ed d ef en d ant with a gun. Specifica lly
, Virg inia Rojas testified that she did not observe a gun in defe ndant’s hand and did not see him shoot at anyone. Supra ¶ 8. Rosendo Diaz testified t h at h e did not know whether defe ndant was the shooter, that he did not obser ve a gun in defe ndant’s hand, that he did not observe anyone shooting, and that he was drunk at the time of the shooting. Supra ¶¶ 11-12. At a lineup, Diaz identified defe ndant as a person whom he had observe d running

-16-awa y

. Supra ¶ 10. L

uis Tor res testified that he hated defe ndant beca use he believe d him to be a rival gang member, but he admitt ed t h at he had not observe d defe ndant wit h a gun in his hands. Supra ¶ 16. All of the defe nse witnesses testified that defe ndant did not have a gun and that J uan Gar cia, another man prese nt at the scene , was the shooter. Supra ¶¶ 25, 28, 31. Both Alexa Guiterre z and defe ndant testified that, afte r the shooting, Gar cia tried to hand the
gun to defe ndant but he would not take it. Supra ¶¶ 29, 32. ¶ 82 Def

endant’ s juvenile adjudication was for wea pon possession, so it bore direc tly on the key fac tual issue in the case , namely
, whether defe ndant was the one who possessed the gun. Def endant’ s juvenile adjudication was for ag grava ted unlawful use of a wea pon. The majority ’s opinion does not “ ‘foc us’ ” on the particula r err or and consider how it “ ‘mig ht’ ” have contributed to the conviction. Supra ¶ 53 (quoting In re Rolandis G.
, 232 I ll. 2d at 43). ¶ 83 We do not have to speculate on whether the adjudication aff ecte d the jury ’s deliber ations. We know for a fac t that the jurors asked the judge for the adjudication rec ord to revie w and that it was the only thing that they asked for during their deliberations. See People v. Maldonado
, 402 I ll. App. 3d 411, 433 (2010) (considering the purpose of the jury ’s note, in deter mining whether the trial court err ed in responding ). The jury beg an deliberating at 4:55 p.m., and afte r 2 1/2 hour s of deliberation, it sent out a note. Although the note itself is not in the ap p ellate rec ord, the trial court stated “[a]t 7:15 p.m. we rec eived a note from the jurors asking to see Ex hibit[ ] No

. 41,” which is the cer tified copy of defe ndant’s adjudication. The trial court rec onvened, and counsel and the court had a leng thy discussion about the appropriate response , in light of the fac t that defe ndant objected to the jury

rec eiving it. The trial court then sent back a copy which stated that def en d an t h ad been “adjudicated guilty ” of “Count 1–Ag gravated Unlawf ul Use of Weapons.” The plur al “we apons” g ave the impression that defe ndant possessed multipl e wea pons. During the prior three hours of deliberation, the jury h ad n ot rea ched a verdic t. Howeve r, shortly afte r

rec eivingthe adjudication recor d, the jury found def

endant guilty

at 8:10 p.m. ¶ 84 Ba sed on all the fac ts and circ umstances of the case , I cannot find that the State satisfied its burden to prove that the trial court’ s err or wa s harmless beyond a re asonable doubt.

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