## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

People v . Land , 2011 IL App (1st) 101048

Appellate Court Caption TH E PEO PLE OF THE STATE OF I LL INOI S, Plaintiff-Appellee, v. JENELL LAND , Defendant-Ap

pellant.

District & No. First District, Sixth Division Docket No. 1–10–1048

Filed Rehearing denied June 24, 2011 July 29, 2011

Held ( N ote: This s yllabu s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conv en ience of the reader. ) Defendant’s conviction for aggrava ted cruelty to a c ompanion animal was upheld where the trial court’s failure to give an instruction onthe State’s burden o f proving

specific intent to in

jure the dog did n ot rise

to the level of plain error.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 09–CR–3945; the Hon. T homas P. Feca rotta , Jr. , Jud ge, pres idin g.

Judgment Affirmed.-2-

Counsel on Appeal Michael J. Pelletier, Alan D. Goldberg, and Benjamin Wimmer, all of State App ellate D efende

r’s Off ice, of Ch icago, for appe

llant.

Anita M. Al va re z, St at e’ s A tt or ne y, of Ch icago (A lan J . Spel lberg, Michelle Katz, and Christine Cook, Assistant State’s Attorneys, of counsel), for the People.

Panel JUSTICE R. GORDON

deliver ed the jud gment of the cour t, with opinion. Justice Cahill concurred in the judgment and opinion. Presiding Justice Garcia specially concurred, with opinion

OPINION

¶ 1 Defendant

Jenell Land

was found guilty by

a jury of a

ggravated crue

lty to a companion anima l, a Class 4 felony. 510 I LCS 70/3.02 (West 2006). After the trial court den ied he r motion for a new trial, defendant was sentence d to 30 months’ probation. ¶ 2 On this appeal, defendant claims that the trial court er red: (1) when it fa

iled to instruct the jury that the State had to prove a specific intent

by defenda

ntto injure her dog; (2) when it responded to a jury

note by stating that whether defendant intentionally committed an act that caused her dog to suffer wa s a question of fact for the jury

to decide; (3) when it found that d efendan t received her Miranda warnings even though she was not pa ying a ttention during the officer’s reading of the m; (4) when it permitted the State during closing argument
to refer to defendant’s us e of profani ty in her dea lings wit h the polic e; and (5 ) when it

assesse d certa

in fines a nd fees. ¶ 3 For

the following rea sons, we affirm defendant’s conviction and vaca te the two charges which defendant

disputes o n appea

l.

¶ 4 BACKGROUND ¶ 5 The following facts a re not in d

ispute. At trial, defendant

admi tted that she a nd her b oyfriend purchas ed a hea

vy industria

l tow chain to use as

a collar for their pitb ull dog

. Defendant

claimed t hat they did this because the doghad broken free from other collars, a nd they wanted to keep him from running away . On July 28, 2008, after rec eiving a citizen’s complaint about a dog being left outside in hot weather without water o r shelter, the investigating offic er o bserved the chain wrapped around the dog ’s neck and instructed defendant that a tow chain was not a proper collar for a dog and that she had to change it. On November

30, 2008, a veterinarian eu thanized the dog after o bserving a larg e gaping hole in the dog’s neck

and a tow chain wrapped around the dog ’s neck, with the chain embedded-3-

in the neck

and coming throug

h the hole . During

the defe nse’s ope ning sta tement a t tria l, defenda nt’s sole d

efense was that h

er act w as stupid but not crim inal. ¶ 6 A key

factua l issue at tr

ial conc erned th e le ngth of time that the chain had been continuou sly

on the dog. The veterinarian testified that it would take appr oximately a week for the chain to brea

k throug h the skin t

o expose the

muscle a nd then an

additiona l fiv e to

seven weeks for the chain to become as embedded i n th e neck a s it was. B y c ontrast, defendant testified that, a week prior to November 30, the chain had be en off the dog and

his

ne ck ha d n o v is ib le in

ju ry.

¶ 7 I. Pretr ial P roceed ings ¶ 8 On January

26, 2009, d

efenda nt was ar rested f or agg ravate d cruelty to a

co mpanion animal. On Febr

uary 26, 2009, s he was in dicted f or the sa me offe nse. The indictmen t charged: “[O]n or about Jul

y 16 , 2008[,] CON

TINU ING THRO UGH N OVEMBER 30, 2008[,] at and wit

hin the County of Cook[,] JENELL LAND committed

the offe nse of AGGRAVATED CR UELT Y TO ANIM AL [ sic ] in that SHE INTE NTIO NALLY COMMITTED AN ACT THAT CAUSED SERIOU S INJURY OF A COMPANI ON ANIM AL, A PIT BUL

L, BY PL

AC ING A

TOWING CHAI

N AROUND IT’S NECK ***.” ¶ 9 On April 2 6, 2009, de fendant filed a motion to supp

ress statements and a

separa te motion
to quash arrest and suppress evidence. De fendan t mov ed to suppress her statements to the police on the ground that she was not informed of her Miranda rights a fte r her ar

rest . She also claimed t

hat the in terrog ation con

tinued af ter she e le cted to re main silent “and/or” elected to consult

withan attorney pr

ior to further questioning. Defendant’s motion to quash
arrest and suppress evidence

claimed that the police lacked either a warran t or proba ble caus e when they arr

ested he r on Novembe r 30, 2008. After an evidentiary hearing, both pretrial motions were denied.

¶ 10 II . Pretrial Suppression Hearing ¶ 11 Since one of defendant’s claims on appeal conc erns the pretrial suppression motion, the facts of the hear ing are present ed in deta il. ¶ 12 At the pretrial suppression hearing held on May 20, 2009, the trial court

heard first the motion to qu ash the a

rrest. ¶ 13 Defendant

testified that she lived with her grandparents on Pacific A venue, in Hoffman Estates, and that she was living at the Pacific Avenue addr ess on No vember 3 0, 2008. However, on November 30, at appr ox im at el y 9 p.m., she w as with he r childre n and thei

r father at his residence on

Briar Hill Drive in Schaumburg, and she ha d stayed there

the night before. At approximately 9 p.m. police officers knocked on

the door and she answered it. She then stepped o

utside and stood on th

e p orch.. D efenda

nt testified that a ma

le offic er said

“ ‘You’ve been a naughty

girly, a nd you know what y

ou’ve done wrong. ’ ” The tw o office rs,

a male and a female, then drag ged defendant to a police vehi cle and handcuffed her. They-4-

transportedher to the Schaumburg police depart m ent, where officers asked her questions and she made statemen ts. Defe ndant tes tified tha

t she was not shown a

warran t for her arrest. ¶ 14 The State then called D ennis Schm it t, a police officer with the Schaumburg police departm ent. Schmitt tes tified tha

t, on November 30, he was accompanied by fellow officer BrianTrumf, whom Schmitt w as training. Schm itt receiv ed infor

mation fr om a community service officer that

an animal was brought into an animal hospitalwith a cha in embedd

ed in its neck. Th at evening, the y sp oke to Ka

ren Davies, the treating veterinarian technician, at her residence, and showed her a pho tog raphic array . The array included a photograph of defenda nt, taken prior to her arrest in this case. Davies identified de fendan t as on e of the individua ls who brought the

dog to the

animal ho spital cla

iming tha t it was he

rs. ¶ 15 Schmitt

testified that, aft er the identifica tion, he went to the address that had been supplied to the veterinarian’s office. The addr ess was on Briar Hill Drive and he went there withOfficers Brian Trumf and Ke ndra Ziebell and community service office

r Max Marcus. After Schmitt knocked on the doo r, defe ndant ope ned it and said “[h]old on” and then closed the door. The

n Schmitt he ard a fe

male voic e say

“[t]hat f** * b***. Call th e cop s.” Then defendant exited the house, closed the door behind her and stood on the walkway next to the
garage. Then she made a remark to the effect that she ha d not done anything

and the dog was
nothers. At

that time, defendant was placed under arr est and transported to the policestation. Schmitt denied that any of the police of ficers dragge d defendant to the police vehicle. ¶ 16 The tria

l court de nied the m

otion to quash the arrest, finding that the police had probable

cause to arre st base d on the ve terinarian’s identification and the fact that the dog had an industrial chain em

bedded in its neck. The tria

l court a lso observed that defendant, by her own testimony, was arr

ested outside and not at her own home. ¶ 17 For

the motion to suppress statemen ts, the defense rec alled defendant as a witness. Defendant

testified that, on the evening of November 30, 2008, between 9 and 10 p.m., she

was brought in handcuffs to the Schaumburg police department. It took approximately five minutes to travel to the police station. In the station, she was ta ken to a processing center, where police officers questioned her. Prior to the questioning, she was not informed of her Miranda rights. Four police officers wer e present, including Schmitt and a female office r. ¶ 18 The State called Kendra Ziebe ll, a Schaumburg police officer, who testified as follows. On November 30, 2008, Ziebell went to Briar H ill Drive with Officer

Schm itt. When defendant stepped out of the residence, she w as yelling a nd combative. Before the officer s advisedher why they

were there, defendant started y elling that the dog was not even hers and that “b*** called

the cops.” Then Officer Schmitt placed defe ndant under arrest and advised her of her Miranda rights. When Officer Schmitt asked her if she understood her rights, she repliedthat he was “a b*** a*** motherf***.” After being transported to the police station, defendant was placed in an open area of the booking room and

handcuffed to a long bench. Approximat

ely 20 to 25 minutes passedbetween defendant’s initial arrest and the intervie w at the police stati on. Defe ndant nev er state d that she did not wa

nt to talk to

the offic ers. ¶ 19 On cross-examination, Ziebell testified that defendant was not asked to sign a waiver

of her Miranda right s. Z iebell wrote a report, but she did not indicate in the report that defendant received her Miranda rights because Ziebell was not the one who administered-5-

them. ¶ 20 In closing , defens e counse l argued that his “client h as credibly indica ted that she was

never read her Miranda rights.” In addition to his cli ent’s testimony, defense counsel observed that there was no signed waiver of rights and no indication in a written report that the rights were read. After he aring a rgumen t from both

sides, the trial cou rt found c redible the testimony of the two police off icers that the Miranda rights were administered.

¶ 21 II I. State’s Evidence at Tr

ial ¶ 22 Since we must later analy ze whether the evidence on the issue of specific inten twas closely balanced, and since defendant testified and denied

intent, we

must prese

nt in deta il a descr iption of th

e circu mstantial evidenc e which ma

y sh ed light on defendant’s de

nial. ¶ 23 During

opening statemen ts, defe nse counsel conceded that defendant had placed a tow chain around th e dog’ s neck and that this w as “a re ally dumb thing

to do.” He argued

that she didthis because the dog ran away a lot and “[s]he didn’t want her dog to run away.” Her defense was that this was “a stupid idea but it was not a criminal act.” ¶ 24 The State’s first witness was Max Marcus, a community service off

icer with the Vill age of Schaumburg. His main duties involved animal control, and he had beenemploy

ed in this position for 18 1/2 yea

rs. He was on duty dur

ing the evening of November 30, 2008, when he receiv ed an ass ignment to in ve stigate an animal cruelty complaint from the Golf Road Animal Hospital. At the hospital, he spoke with Dr. Christina McCratic, who showed

him the body of a dog

who had been euthanized. The dog was a pit bull with a la rge tow chain around its neck and a large g aping hole in its neck. After reviewing the related

paperwork, Marcus recognized the Briar Hill address as an address that he had visited in July 2008. ¶ 25 Marcus testified that, in July 2008, he was investigating a citizen’s complaint of

animal

cr ue lt y, namely, that a dog was being left outside duringseverely hot weather with no food

or shelter. When he fi

rst went to the location, he did not observe the dog. However , when he returned later that same day, he

observed a pit bull tied to a swing set. After he knocked on the front door, defendant exited the residence and he informed her of t he crue lty c omplaint. They then went to the backy ard and he observed that the water dishes we re tipp ed over. Defendant

explained

that she h ad just

returned home and that thedog must have tipped over the dishe s. ¶ 26 Marcus testified that he advised defendant that there had bee n a complaint

of no shelter for the dog. Defendant responded that ther e was a play

house where the dog cou ld resid e. However, Marcus o

bserved that, since the

leash was tied a

round the swing se t, the dog could
notreach the shelter. Defendant then responded that there wa s a large tree that provided shade in the afternoon. ¶ 27 Marcus testified that he also observed that there was a larg e tow chain wrapped around the dog’s neck as a collar. Def endant stated that the chain was the only thing that pre vented her dog from bec oming loo se and that the dog had become loose before . Marcus told her that

a tow chain was not

a proper collar

for a dog , that she

had to cha

nge tha t, and tha t he would be back in another day

to check on it. Marcus observed that the dogappeared healthy , and he did not issue any civil citations at that time. L ater in July, Marcus returned two or three1 There is no issue on appeal regarding the admission of any photographs.

-6- times. However, he observed no dog outside and f ound no one at home. ¶ 28 Turning back to November 2008, Marcus testified tha the recognized the euthanized dog in the anima

l hospital a s the same dog that he had observed in July 2008 at def endant’s house. The doct

o r an d the animal technician provided Marcus with a description of the
person who had br

ought the dog to the

animal ho spital and

their de scripti on rem inded Marcus of defe

ndant. Marcus then returned to the police station to obtain a camera in order to tak e phot ograph s of th e euth aniz ed dog. ¶ 29 The four photographs which Marcus took we re admitted into evidence. 1 The ph otographs depicteda tow chain wrapped around the dog’s neck, and a big g aping hole in the dog’s neck, and the chain coming through the hole. Marc us testified that it appeared to him as though the chain had grown through the dog ’s neck. ¶ 30 The State’s next witness was Deborah Diamond, who had been an animal control police officer for the Schaumburg police department since 2001. Prior to 2001, she had served as

a comm unity ser vice officer since 1986. She was on duty on August 29, 2008, when she received an assignm

ent at 1 p. m. conce

rning a stray dog tha t was being held a

t an addr ess at BrendonStreet. When she arrived, she did not observe any form of identification on the dog. She also performed a

scan for a microchip that proved negative. Diamond then transported the dog to the impoundment facility, whic h is atthe Golf Road Animal Hospital. After a dog has been impounded, the owner may claim it by

id e ntifying it at the hospital and then proceeding to the police station to pick up any citations that have be en issued. Before release, the dog is implanted with a microchip for identification. ¶ 31 Diamond testified that Emangie Tripp of a Briar Hill address later came to the police station to claim the dog. At the time, Diamond did not observe any evi dence of i nj ur y. Diamond te stified th at the Br iar Hill a ddress is ap pr ox im at el y a block from where she had pickedup the stray dog . Diamond issued three citations to Tripp when he c ame to cla imthe dog. ¶ 32 Diamond further testifie d that, on D ecemb er 1, 2008, she went to Golf Road Animal Hospital to retrieve the chain that had been removed from a pit bull the day befor

e. Diamond testified that the chain wa s a “heavy
, industrial two type chain” with links that were approxima

tely two inches, and that it weighed 3.4 pounds. Photographs of the chain taken by Diamond and the c

hain itself were then introduced into evidence. ¶ 33 The Sta te’s next witness was Dennis Schmitt, a Schaumburg police office r. Schmitt testified that he was on duty as a patrol off icer on November 30, 2008, when he received a n assignment

at 7:30 p.m. to investigate an animal cruelty complaint. After r eceiving information from Max Ma rcus, a c ommunity

servic e o fficer, Schmitt prepared a photogr aphic array , which included a photograph of defendant, plus the photographs of three other individua

ls. Schmitt

then wen t to the residence of Karen Davis, who wa s employed at the Golf Road Animal Hospital. After showing Davis the photographic arra y, Schmitt, who

was in uniform, proceeded in a police squad vehicle to the Briar Hill address, accompanied by O fficer s Trumf, Z

iebell and Marcus

.-7-

¶ 34 Schmitt

testifie d that he h ad previ ously been at this addr

ess on Apr

il 28, 2008, to investig ate a co mplaint ab out a barking dog. On

April 28, Schmitt observed a barking dog in the back

ya rd chained to a sw ing set. Schmitt cou ld not rec all the type

of chain . In r

esponse to Schmitt’s knock on the front door, defendant answere d it. After Schmitt told her to bring the dog inside, Schmitt observed her doing so. ¶ 35 Turning back to November 30, 2008, Schmitt testified that, after arriving at the Briar

Hill address
, he stood on the front porch and knocked on the front door. Defendant answered the door and said “hold on” to the officers. Then she walked a way fr om the door and said “[t]hat f*** b***. Call the cops.” Then defendant threw open the door, w alked out, slammed the door, and stepped off

the porch. Defendant stated, “[t]his is f*** bullsh***. That dog ain’t even mine.” Then

Schmitt placed under her arrest and rea d her Miranda rights. Defendant responded

to the re ading o f her rig

hts by sa yin g “b*** a*** motherf***.” Defenda nt kept screaming obscenities. The officer s then escorted defendant to the squad vehicle. ¶ 36 Schmitt testified that, while defendant was sitting in the back of the squad vehicle, she stated that s he “didn’t mean to have it around the dog’s nec k to be mean or nothing.” The vehicle arrived at thepolice station in a few minutes, and the officers placed def endant in a secured holding facility, wher

e she was handcuffed

to a bench. Schmitt testified that he tried to have a convers ation with

defenda nt, but she

responded with a str

eam of ob scenitie s. ¶ 37 The State’s next witness was Kendra Ziebell, a police patrol officer with the Schaumburg police department. Ziebell testified that, on November 30, 2008, she a ccompanied Officer Schmitt and other police officers to the Briar Hill address. After defenda nt came to the door, sh e said “h old on.” and then she walked back inside and said “[t]hat b***, call the cops.” Defendant

then stepped out, closed

the door and stepped off the front porch. Def endant stated “I didn’t f*** do nothing. That dog ain’t even mine.” Z iebell then observed Schmitt place defendant under arrest and advise defenda nt of her Miranda rights. O fficer Schmitt transporteddefenda

nt to the police station, and Ziebell followed in a separate vehicle. At the
po lice sta tion, defendant was handcuffed to a benc h, and she was screaming and y elling obscenities. Eventually, Z iebell was able to calm her down and have a c onversation. ¶ 38 Ziebell testifed that defendant stated that she pu rchase d the d og thre e years ago to be her family dog. De fendant stated tha

t, at that time, she was the only owner of the dog, who was namedCarmello. Defendant stated that, at that time, she lived in Ha nover Pa rk, but she

lost her house the re, and s he had to

move in wit

h her grandparents in Hoffman Esta tes. Defendant stated that s he the n gave t he dog t o h er child ren’s f ather, w ho resided at the B riar Hill address. Defendant stated that, although she did not live at the Briar Hill address full time, she stayed there

severa l nights a week and she alway s saw the dog. Defendant stated that the dog star te d running away from the house and that the children’s father purc hased an industria l-streng th chain at Home Depot to put around the dog’s neck. Defendant stated that they tied the dog

to a stake in the backy ard. ¶ 39 Ziebell testified that defendant stated that she did not even notice the hole in the dog’s neck, until her son brought it to her attention onNovember 29. Defendant stated that she then reprimanded

her son by say

ing “[h]ow did you

not see this? This is bogus. You sleep with the d*** dog.” When Ziebell asked defe ndant if she knew how the injury occurr ed, defendant-8-

replied tha t her son was responsible for taking the dog outside and that he may ha v e accide ntally tightened the chain. Then d efenda nt stated t hat the ne ighborsmay

have co me

over the fence and tightened it. Zie bell testified that, during this conversation, defen dant refer red to the dog as “my dog” several tim es. ¶ 40 Ziebell testifie d that def endant sa id that, although she was around the dog all the time, she never saw the hole until her son poin ted it out. Defendant said that she noticed on November

29 that the dog was becom ing emac ia te d a nd sh e d id no t u nd er st an d w hy. Defendant

stated that, when she saw the hol e, she br ought the dog to the

animal ho spital; however, she gave the technician a fa ke name because she was scared. Defendant stated that the hospital wanted $1,000 to save the “d*** dog,” and she cannot even pa y he r water bill. Defendant

stated that, for collateral for the surge ry, she off

ered her vehicle title, $500 and a flute. ¶ 41 The State then read a stipulation ent ered by the par ties which stated that Carmello’s mi crochip

number was registered on Aug ust 29, 2008, to “Emagie or Jenell Trip a t [the ] Briar Hill [address], Schaumburg, I llinois.” ¶ 42 The St

ate’ s next witness was Dr. Christina McCratic, an emergency veterinar ian at the Golf Road Animal Hospital. McCratic has been an emerge ncy veter inarian for 15 y ears and had been employ ed at the Golf Road Animal Hospital for 10 years. The court accepted the witness as an expert in veterinary medicine, without objection. ¶ 43 McCratic testified that she was working at the Golf Road Animal Hospital on November 30, 2008, at 3:45 p.m. when she was aske d to examine a dog na med Carme

llo. As McCratic openedthe door t

o the examin ation roo m, she could smell a strong odor of decay

ing, rotten flesh. McCratic

explained

that a dog ’s body

tempera ture is no rmally 102 deg rees, so that if

a part of the dog is decay

ing or rotting , itwill give

off a str ong odor . McCrati c said tha t it

was “compar

able to a 102 day

in the summer, walking by a restaurant dumpster, where y ou smellthat dec aying food

in there .” From t

he smell a

lone, McCr atic k new that t here wa s a large infectio n. The exa

mination r

oom conta

ined the p it bull, as w ell as defendant, a y oung black man, and an older Caucasian man. Defenda ntstated that there was a cut on her dog’s neck and she wanted Dr. McCratic to remove the chain. ¶ 44 McCratic testified that she asked how long the cut had been there, and def endant replied that it had just happened. McCratic responded that a cut like that does not just happen and that the chain had been on

for a long time based on

the amount of decay

and discharge shown and the condition of the animal. At that point, defendant volunteered that the dog belonged
to h er 12-ye ar-old son. McCratic replied that the dog cannot leg ally be owned by a mino r , so the dog belonged to defendant. De fendant did not respond. ¶ 45 McCratic

testified that she began her visual examination of the dog as soon as she entered the room. The dog could not lift his head. McCratic explained that the condition is called “ventroflexin” and the doctor demonstrated thecondition by bringing her chin down toward her chest. McCratic further testified that the dog wa s very thin, withall his ribs sticking out and his hip bones protruding. The dog was standing a nd not moving, but he was trying to wag histail. ¶ 46 Regarding the do g’s neck , McCr atic o bserv ed tha t the c hain l inks had cu t thro ugh th e-9-

skindown to the muscle, and the muscle was exposed. She observed a verythick, yellowgreen dischar ge or pus, which is associated with an extremely infected wound. The pus was the consiste

ncy of peanu t butt e r or honey, a

nd it was located all the way around his neck, coating the chain. The dis charg e would ha ve trans ferre d to anything it touche d, beca

use it was thick andsticky. There w as also a lot of blood spattering on the chain which indicated that t he mus cle had been b leedi ng. ¶ 47 M cCratictestif ied that there was a large hole in the ne ck, with a lot of discharge, and exposed muscle, and that the links wereembedded underne ath the sk

in. It was not po ssible
to lift the chain off the dog’s neck. McCratic stated that touching the chain without painkiller

or anest hesia would have b een cru el. Mc Crati c concl uded t hat th e dog’ s injury was lifethreat ening. ¶ 48 McCratic

testifie d that a la

rge se ction of c

hain looped ar ound the dog’s neck, with two separa te pieces of chain extending down about five links. The chain was connected under the
ventrumof

the neck and into the skin. McCratic explained

that the chain wastoo heavy to be a dog collar. Most collars weigh only three or four

ounces. Even the heavy c hoke collars sold in pet stor

es weig h only ounces. McCratic

explained

that, by compari son, this chain

w eighedove r three

pounds, a

nd thus would cause

damage to the tissu es under

neath it. McCratic stated that even bolt cutters would not have been enough to r emove this chain, be ca us e i t w as to o h ea vy. ¶ 49 Explaining the treatme nt options to

defenda nt, McCra tic stated tha

t the cha in would have
to be surg ically

removed . First, t

he dog w ould have

to be asse ssed to determin e if he was a candid ate for anesthe sia. I f he coul d be ane sthetized, then she w ould have to surgi cally dissect ea ch link to loosen the skin that had grown over it. Then, due to the extens iv e necrosi s of the skin, the dog would need extensive treatment for months to grow the tissue back without infection. The only other option was huma ne euthanasia because the dog was ill and in a lot of pain. McCratic then exited the room to allow defendant time to consider the options. McCratic was later informed that defendant had elected to euthanize Carmello. ¶ 50 McCratic testified that, before euthanizing Carmello, she offe red him a can of dogfood which that he a

te rave nously . Observing how h

ungry he was, she offe

red him two more cans of food wh ich he consumed quickly. Af ter Carmello was euthanized, McCratic lifted the chain away f rom his neck, and she he ard the ripping and popping of tissue, as her action broke the scar tissue that had grown over the cha in. The chain had grown so far into the nec k that she conc luded she

would not be able to remove the chain without surgically dissecting th e chain fro m the neck. Based on the extent and nature of the injury , McCratic called the police. Then she began s ur gi ca ll y c utting through the skin and muscle to determine how
many layers of tissue the c

hain hadgone th

rough. She discov ered tha t the cha in links were millimeters awa y fro m t he t rac hea . In addition, the jugular vein had grown and wa s coming through a hole in o ne of the

chain lin ks. ¶ 51 Mc Cratic explained to the jury how this injury occurred. When an item is placed too tightly on skin, the pressure cuts off the blood s upply

and the a rea die s and bec omes wha t is cal led “necrotic tissue .” Then t he skin pa

rts to rev eal the next layer, which is mu scle. Th e tightne ss will also cause the muscle tissue to lose blood supply and die. The chain will kee p-10-

cutting through lay ers of tissue as each layer dies from lack of blood supply . Meanwhile, the body tries to c over the

area to create a barrier to prevent bacteria f rom entering. The covering

over the necr otic or de ad tissue

is called “granulation tissue.” The blood vessel will then seek

new routes of blood to supply the g ranulation tissue, which is how the jugular vein be gan growing through the chain link itself. Carmello’s neck was litera lly gro wing around the chain. ¶ 52 Based

on her pr

ior exper ience, M cCratic

estimate d the amo unt of time it woul d have taken an injury

to develo p. First, it would

ha ve ta ke n a pp ro xi ma te ly a week fo r the cha in to break through the skin to expose the muscle. Then, it would then have taken approxima

tely five to seven weeks for the granula tion tissue to have grown

to th e e xt en t t ha t i t h ad , n am el y, withadditional skin on top and some hair starting to grow. I t would have taken a minimum of a month and a half for this injury to develop. ¶ 53 McCratic

identified a couple of photographs of the dog which were taken after he was euthanized and which were introduced into evidence. ¶ 54 On cross -examinat ion, McCra

tic testifie d that the

names on t

he hospita

l’s bill included JenellTrip and Jumanja Tripp. Carmello wa s approximately 2 to 2 1/2 y ears old, and

no rm al ly, a dog of his ty

pe should have be en just at the end of hisgrowth

spurt. Mc Cratic had provided defendant with an estimate of how much treatment would have cost, but she didnot recall defendant stating that she had ca sh with h er . Defendant did not discuss w ith McCratic other possible forms of p ay ment. However, McC ratic was aware that defenda nt had decided on humane euthanasia due to a lack of funds. Defendant and her two compa nions stayed at the hospital for approximately an hour and a half a fter receiving the treatment estimate drawn up by

McCratic and before electing to e uthanize. ¶ 55 The State’s next witness was Charles Bulson, who managed the boarding kenne l at Golf Road Animal Ho spital and also per forme d animal control functions for the Village of Schau mburg. In the

morning of Dece mber 1, 20 08, he wa s told to re move a ch ainfrom the neck o f a euth aniz ed dog. After arriving at the hospital, he removed the dead dog from the
stora ge freezer and storage bag . After pulling the dog’s head bac k, he observe d the cha

in embedded

in it s n ec k. Th e c ha in wa s a he av y-d ut y, hardened-steel chain used for ty ing down loads on trucks. Bulson testified that he had prev iously worked as an iron worker and a stee l fabricator. The chain was so tight on t he dog t hat he co uld not fit b olt cutter s on the ch ain to
cut it. Then he reached inside the dog’s nec k to pull out the chain far enough to e xpose some of the links. Howeve

r, he wa s still unab le to cut th e chain with the bol t cutters. Then he startedlooking for where the chain was c onnected, and hediscovered a C-shap ed link wit

h

a nut on one

side. Aft er snapp ing that

link, he a nd an assi stant wer

e able to pull the chain out. Bulson identified several photographs taken of the dog after the chain was removed, and the photographs were introduced into evidence

.

¶ 56 IV. Defense E vidence at Trial ¶ 57 The def

ense witnesses we

re a nei ghbor, defenda

nt’s gr andfath er and de fendant

. ¶ 58 The defense ’s first witness, Ke lly C ollins, tes tified tha

t s he had been defenda

nt’ s neighbor for four y ears and that their kids played tog ether. Collins testified that defendant’s-11-

home was on Briar Hill Drive in Schaumburg. De fendant and her children lived there, and Carmello was their dog. Coll

ins often called th e dog “Melo,” in

part bec ause he w as a mellow and nice dog. Collins observed defendant and defendant’s boy

friend taking care of the do g. ¶ 59 Collins testified that, b etween July and November 2008, she visited defe ndant at her homeat least once a week and stay ed for several hours. Whenever she we nt over there, she also observed the dog. During these visits, Collins observed that Carmello’s collar was made
outof chain

links, similar to the links found in a chain link fence. However, during this time, Carmello was not alway s wearing his collar. ¶ 60 Collins testifie d that, during the weekend prior to the euthanasia, she observe d that Carmello appeared fine and that he did not appear any skinnier than he

had be en in Ju ly. She also did not observe any injury at that time. Aft er the dog was euthanized, defendant
contact ed Collins a

nd defendant see

med very upset. ¶ 61 On dire ct examination, when asked specifically ab out the we ekend pr ior to th e euthanasia, Collins volunteered that she did not “think at that point he had the collar on.” On
cross, when asked about the same weekend, she state d that she didnot “believe” that he was wearing the chain collar. On redirect, defe nse counsel asked whether she “specif ic al ly” remembered

whether Carmello was wearing the c ollar during that weekend, and

she replied “no.” ¶ 62 The def

endant’ s next witne ss was Kenneth Land, defe ndant’s 79-yea

r-old grandfather, who testified that

he had raised defendant. Between July and November 2008, he visited her and her three children every day at their home on B riar Hill Drive, where they lived with defendant’s boyfriend, Mr. Tr ipp. Land testified that he “loved that dog ” and played with him
every day. On Nove

mber 30, 2008, his daughter called him and he came over. La nd observed that Carmello ’s chain

had bec ome “embedded in the neck.” However, there w as no b leedi ng. Land drove Tripp, defendant and Carmello to Golf Road Animal Hospital. They wer e at the hospital for appr

oximately 2 1/2 hours
, and Land heard th e doctor describ e their o

ptions. Land, Tripp and defendant wer e a ll cr yi ng at the thought of putting the dog to slee p. Howeve r, the hos pital wan

ted $1,00 0 up front

for trea tment, an d they

lacked t he funds. ¶ 63 On cross-examination, Land testified that, whe n he came to visit, the dog could be inside

or outside. If Carmello was outside, it was only for an hour or two. Then Carmello would be chained to the swingset with the tow chain. The dog was his grandson’s re sponsibility. La nd testified that he never saw anyone place the chain on the dog’s neck, but that the dog did not

wear the chain in the house. A couple of day s prior to the trip to the hospital, Land did not observe anything w

rong with the dog. During the a utomobile ride to the hospital, Land did not smell a

nyt hing unu sual. ¶ 64 The defense’s third and last witness was the defendant, who testified that she owned the dog withJumanja Tr

ipp, who isthe father of thr ee of he r four children. Contrary

to both her neighbor and her grandfather, defendant testified that, between July and November 2008, she didnot resid

e at the B riar Hill

address . Defendant testi f ied that she lived at th

e Pacifi c2 At t he suppression hearing , defendant testified that the Pacific Avenue ad dress was her grandfather’s address.

-12- Avenue address
, 2 while Tri pp and he r childre n lived at the Bria r Hill add ress. However, she visited the Briar

Hill address three or

four times a week. Her oldest son, 12-y ear-old Brandon Tripp, was resp onsible f

or taking care of Carmello , the dog , who stay ed at the Briar H ill address

. ¶ 65 Defendant

testified that she and Tripp purchas ed Carm ello in 2006. They tried using leather collars, vinyl collars a

nd choker collars; however, the dog br oke free. Thus, Tripp and defendant went to Home Depot at some time in 2008 to purc hase the tow chain which Carmello was wearing on November 30, 2008. Usua lly, the dog wor

e the chain only w

hen he was outside. ¶ 66 Def

endanttestifie d that, on Novemb er 30, 20 08, Bra ndon and T

ripp brou ght toher attention the fact that they

could not remove the chain. Defendant called her g randfather, who tried unsucce ssfully

to remove

the chain. It w as appro ximately 3 p.m. on a

Sunday , so they decided to bring Carmel lo to the Golf Road Animal Hospital, because it was open on Sunday s. Defendant called the hospital and gave her name as Jenell Tripp. Then she, Tripp and her gr andfath er tran sported Ca

rmelloin her father’s jeep, with Carmello traveling in the flatbedpart

of the vehicle . Defendant testi fied tha t she did not look at the

dog’s c ollar unti l they were at the ho spit al, be cause i t “hur t” her t o loo k at th e dog. ¶ 67 Defendant testified that, when she looked at the chain, she obse rvedthat it “went

throu gh the dog’s neck.” However, she did not observe any

blood. At first, the veterinarian technician explained that this type of injury would require extensive surgery but there was no guarantee that the dog would live . Defendant testi fied tha t, to pay for th e surge

ry , sh e offered the technician $540 in cash, a vehicle title, a flute, and a collection of Hummels. The technician said that would not be acceptable. Defendant testified that she then a sked her

grand father to write a postdated check, but he refused to do so beca use o f insuffici ent funds . Defendant, Land and Tripp

discusse d their

options for about a half-hour, and then ultimately defendant made the decision to have the dogput to slee p, beca use she did not have the money to pa y for the surgery . They wer

e told that the cost for the surgery

would be $1,400 or $1,500, and then $200 or $300 fo

r every -other- week vis its. ¶ 68 Defendant testified that she had occasionally placed the collar on the dog and that the last time that she personally plac ed the collar on the dog was approximately three or f our weeks prior to November 30. The last time the collar was taken of f the dog by a nyo ne, prior

to November

30, was approximately a week before. Defendant had occ asionally observed the dog slip out of the collar. ¶ 69 On cross-examination, defendant testified that she had seen th e dog without the collar aroundhis neck one week before November 30. Defenda nttestified that, at that time, he had

no injury on

his neck. The dog slept in her son’s bed every night. When she changed the sheets on h er son’s bed, she did not observe any blood, pus or discharge of any kind. Defendant

admitted t

hat, when the police came to the door on November 30, she stated that “f*** b***” called the cops. When shown photographsof her dog taken on November 30,-13-

she admitted that the photographs depicted a big hole in the side of his neck, as well as blood and a ye llow substance.

¶ 70 V. Jury I nstructions ¶ 71 The Illinois Pattern Jury Instructions (I

PI) manual does not contain an instruction for the charged offense. With the ag reement of

both parties, the trial court provided the following instruction, which tracked the languag e of the statute:

“To sustain the charge of

aggravated

cruelty to an a

nimal, the State must prove the following proposition: That the defendant intentionally c ommitted an act that caused a co mpanion animal to suffer serious injury or death.” Alth ough the trial

court did not brea k the off

ense dow n into ele

ments, the

trial cou rt did
sp ec if ic al ly i ns tr uc t t he ju ry: “A ggravated

cruelty to an a

nimal does not include euthanasia of a c ompanio n animal through recognized methods approved by the Department of Agriculture.” The trial court was concerned that the subsequent eutha nasia by the ve

terina rian might confuse the jury , and the above instruction was intended to remove that confusion.

¶ 72 VI. Jury Notes ¶ 73 One of the claims on a ppeal co ncerns t

he second of two notes submitted by the jury during i ts deliber ations. ¶ 74 The first jury note asked: “May we review the transcript of defendant’ste sti mon y ?” The
tr ia l j ud ge pr ov id ed th e fol lo wi ng ha nd wr it te n r ep ly:

“There is no transcript of the defendant’s testimony available. You have all the evidence in this case, please continue to deliberate

. Judge Fecarotta 4:32 p.m.” There is no issue on appeal regar ding this first note. ¶ 75 The jury submitted a sec ond note that stated:

“Is the charge of ag gravated cruelt y to an anima

l which is intentiona

lly committing an act ...
Is the intentional act she committed putting the chain on the dog’s neck or leaving the chain on the dog?” (Ellipsis in original.) In reply , the trial judge provided the following handwritten note:

“Whether the defendant intentionally c ommitted an act that caused a companion animal to su ffer seriou s injury or death is a que stion of fact for the jury to decide. You have all the evi d ence in t he case and the in struction s on the la w that app lies, please continue to deliberate. Judge Fecarotta 5:32 p.m.” ¶ 76 Prior to giving thi s respons e, the tr ial cour t discusse d it with

the State and the defense,3 “People ’s instruction numbe r 11” is the non- IPI

instruction which track

ed the statute and which is provided

in full in the prior section of this opinion.

-14- and the c ourt had t

he following discussion with defense counsel:
“THE COURT: *** If y

ou have another suggestion–I mean she [the author of the note] wants me to define whether or not the defendant committed

this act. That’s not a question for the judge to decide. That’s a que stion of fact for them to decide.
DEFENSE

COUNSEL: Th ey have all the facts. They actually have

People’s instruction number 11.[ 3 ] I believe from thes e two, she

should be a

ble to discern what it is.
THE COURT: I still have to answer the question and do the be st I can in directing the jury . So I bel ieve tha t that’s th e proper thing to d

o. So that’ ll be my

answer. DEFENSE COUNSEL: We agr ee.” The trial judge then read aloud the exact written response that he int e nded to give, and he askeddefense counsel again “[a]ny objection?” To which defense cou nsel responded no. Late r that sam e day , the jury

returne d with a g

uilty verdict

.

¶ 77 VII. Postr ial P roceed ings ¶ 78 On Octob er 15, 2009, a jury retu rned a v erdict findi ng defend ant gu ilty of aggravated cruelty to a companion animal. In a posttrial motion for a new trial, defendant claimed (1) that the State failed to prove bey ond a reasonable doubt that defendant was the last person who placed the chain around t he dog ’s neck; (2) that the trial court erred by denying defendant’s motion to suppress her statements to police; and(3) that t he gove rning st atute was unconstitutionally vag ue. ¶ 79 On December 15, 2009, the trial court deni ed the posttrial motion, and sentenced defendant to 30 months’ probation and assessed fines andfees totaling $610. The conditions of her probation included prohibitions against any possession or contact

with pets o

r animals and any consumpti on of any

alcohol, marijuan a or othe r contro lled substa

nces. ¶ 80 On January 12, 2010, a petition to revoke probation was filed, alleging that defendant

had tested positive for marijuana use. On February 26, 2010, a supplemental petition stated that additional violations included: testing positive again for use of marijuana, refusing to answer interview questions or to sign the pro bation supervision agreement, and failing to make payment toward probation fees. On April 9, 2010, a second supplemental petition stated that defendant had again tested positive for marijuana use. On A pril 9, 2010, the trial court ordere d defend ant rema

nded to the

custody of the she

riff’s d epartme nt for 90 d ay s. ¶ 81 On April 12, 2010, the State Appellate Defender filed a notice of appeal ondefendant’s behalf, and this appeal followed.

¶ 82 ANA LYSIS-15-

¶ 83 Defendant

was con victe d of agg ra va te d c ru el ty to a compa nion anima

l. Aggravated cruelty is define d by

statute a s “intenti onally

commit[ting] an actthat causes a companion animal to suffer serious injury or death.” 51 0 IL

CS 70/3.02 (West 2006). However, the
statute specifie s that ag grava

ted crue lty does not include euthanasia of a companion animal by a veter inarian. 510 IL

CS 70/3.02 (West 2006). ¶ 84 On this app eal, defendant claims that the trial court erred: (1) when it failed to instruct the jury that the State had to prove a specific intent by defendant to injure her dog; (2) when it responded

to a jury note by

stating that whether defendant intentionally committed an act that caused her dog to suffer wa s a question of fact for the jury to decide; (3) when it found that defendant received her Miranda warni ngs even t hough she was not pay ing attention during the offic er’s re ading o f them; (4 ) when it permitte d the State

during closing argument
to refer to defendant’s use of prof anity in her dea

lings with the p olice; and ( 5) when it

assesse d certa

in fines a nd fees. ¶ 85 For

the following reasons, we affirm def endant’s conviction and vacate the two charges which defendant

disputes o n appea

l.

¶ 86 I. Jury Instruction ¶ 87 Defend ant claim s that the t rial cou rt erre d by failing to instruct the jury

that the Sta

te had to pro ve a sp ecifi c inte nt by defen dant t o inj ure her dog. ¶ 88 In a

case decided after defe

ndant’s conviction, the appellate court held that, to obtain a conviction for this of

fense, t he State had to pro ve a specific inte nt to injure

or kill the anima

l. Peoplev. Primbas , 404 Ill. App. 3d 297, 301 (2010). See also People v. Larson
, 379 Ill. App. 3d 642, 651 (2008) (holding that “the agg ravated-cruelty -to-an-animal statute” was not vo id for vagueness, in part, because it requir ed defendant’s “specified intent to caus e” ser ious injury or death to a companion animal). There is no dispute between the parties about what the Primbas case hol ds. ¶ 89 In addition, in their respective briefs to this court, theState conceded that the jury was
notinstructed that the State h ad to prove a specific intent; and the defense c onceded that defendant failed to preserve this error for re view. In light of defe

ndant’s forf

eiture of this issue, defendant asks us to find either that the error rises to the level of plain error or that her trial cou nsel was ineffective for f

ailing to preser ve this issu e for ap

peal. ¶ 90 For

the reasons discussed below, we find both that the error did no t rise to the level of plain error and that defendant’s trial counsel wa s notineffective for failing to raise the issue.

¶ 91 A. Plain Error ¶ 92 Defendant asks this court to find plain error under both prong s of the plain error doctrine. ¶ 93 The Illinois Supreme Court has held that a “defenda nt must bot h specifica lly object at trial and rais e the specific issue again in a posttrial motion to preserve any alleg ed error for review.” People v. Woods , 214 I ll. 2d 455, 470 (2005); People v. Piatkowski , 225 Ill. 2d 551, 564 (2007). When a defendant has failed to preser ve an error for review, we may still review for plain error. Piatkowski , 225 I ll. 2d at 56 2-63; I

ll. S. Ct. R. 615(a) (“Plain e rrors or defect s4 The special concur rence fi n ds that we do not need to addres s defendant’s argum ent regardingthe first prong of the p lain error doctrine, because “ [i]n the section in her m ain brief raising this clai m, the def endant fails to cite a single c ase in s upport of this argument. ” Infra ¶ 169. Defendant

cites numerous cases in support of her plain error claim s; howe

ver, in subs ubse cti on I. C. 2. where she dis cusse s only the ev idence at trial, there w ere no a ddition al cites provid

ed. We disagree that

this provides a rea son to disregard he r claim. See also People v. Williams , 193 Ill. 2d 306, 348 (2000) (“we believ e it would be unfair to require a defendant to a ssert plain error in his or her ope ning b rief”).

-16- affecting subs tanti al righ ts may be n otice d alth ough they were not brought to the attention of the trial court.”). ¶ 94 The plain

error doctrine allows a reviewing court to consider unpreserved error w hen (1)

a clear or obvious error occurred and the evide nce is so closely balanced that the error alone threatened

to tip the scales o f justice agains t the def

endant, r egard less of the seriousness of the error, or (2) a clear or

obvious error occurred and that error was so serious that it affected the fairness of the defendant’s trial and cha lleng ed the i ntegrity o f the judicial proc ess, regar dless of the closeness of the evidence. Piatko wski , 22 5 Ill. 2d at 565; Woods , 214 I ll. 2d at 471 . As we menti oned a bove, defend ant argu es tha t bot h pron gs of the plai n error do ct ri ne ap pl y.

¶ 95 1. Not Closely Balanc ed ¶ 96 The error affected only one element, namely , the spe cific intent to kill or injure the animal; and the evidence on this element was not closely balanced. 4 ¶ 97 In its brief

to this court, defendant argued: “T rue, few people would put a heavy tow chain around a dog’s neck as a c ollar. But that does not mean that most would expect the chain would cause se rious injur

y ** *[.] Ms. L and’s de cision to use the chain as Carmello’s collar could be wrong without amounting to ag gravated cruelty .” ¶ 98 In other words, defe ndant argues (1) that placing a heavy tow chain around a dog’s neck

was not cruel; and (2) that the jury could consider

only defenda

nt’s intent in placing the tow chain around the dog’s neck and not defendant’s intent in leaving the heavy c

hain around the dog’s neck for

weeks. ¶ 99 With respect to defendant’s act of leaving the chain on her dog , the defense brief argues that a jury “c ould reasonably c onclude that she failed to remove the chain *** beca use of Land’s lamentable difficulty in fa cing unpleasant situations.” Defendant arg ues that even when the dog

require d a tripto the hospital, she did not look at his neck because “it hurt her to have to look at it.” ¶ 100 “Where a defendant denies intent, as here where defendant claimed he had no intent to harm [the dog], intent may

be demonstrated through circumstantial evidence .” Primbas , 404 Ill. App. 3d at 302 (citi ng People v. Phillips , 392 Ill. App. 3d 243, 259 (2009)). For e xample, in Primbas , the court

found inhe

rently incredi ble defenda

nt’s testimony

that he wa s merely firing a gun to scare away what he thought was a feral animal, when defendant walked back into the garage without deter mining whether the animal had been scared off or lay

wounded-17-

o n the deck, where it could have continued to pose a da nger. Primbas , 404 Ill. Ap p. 3d a t 302-03. ¶ 101 Simila

rl y, in the case at bar, defendant’s testimony was inherently incredible. Defendant’s trial testimony conflicted with that of her own witnesses, namely, he r grandfat

her a nd neighbor, when she claimed that she did not live at the same address as the dog. Defe ndant’s testimony–that

the chain had been on the dog for less than a wee k and that at that time he had

no injury at all–and the vete

rinaria n’s testim ony –that the injury was cau se d by continuous
contact for at least a month and a half–could not both be true. Since the only injury presented
to the jury

was one c aused by

continuou s contac t, the jury had to re solve this c

redibilit y dispute again st def

endant in order to find her guilty of causing a serious injury . The grandfather’s testimony that he never sa w anyone pla

ce the chain on the dog wasinheren tly incredible, since he also testified that he was at their home almost every

day, that he saw

the dog bot h i ndo ors and out doo rs, and th at t he d og d id not wea r th e ch ain whe n i ndo ors . In addition, defendant had to know that thechain was not a proper collar for a dog , when the animal control officer in July 2008 specific ally informed her of that fact and directed her to chang e it. ¶ 102 The jury

could hav e found th at defe ndant spe cifically in

tended to cause Ca rmelloin ju ry, at a point in time after

the chain broke through the skin and during the four to six weeks it took for the chain to become seriously embedded in the dog’s neck. The veter inarian was accepted, without objection, as an expert in veterinary medic ine. Since no other expert testified, her expert testimony about the prog ression and development of this type of injury went unrefuted. ¶ 103 For

these reasons, we find that the evidence onthe issue of specific intent was not closely balanced, and thus th

e error did not rise

to the level of plain error under the first prong of the plain error doctrine.

¶ 104 2. Not Fundamental Error ¶ 105 We also find that the error did not rise to the level of plain error under the secondprong of the plain error doctrine. Plain error occur s under the second prong, when a c le ar or obvious error was so serious that it affected the fa irness of the defendant’s trial and challenged

the integrity of

the judicial process, regardless of the close ness of the evidence. Piatkowski , 225 I

ll. 2d at 56 5; Woods , 214 Ill. 2d at 471. ¶ 106 In th e c as e a t b ar , t he Ill in oi s P at te rn Ju ry I nst ruc ti ons (IP I) does not provide a pattern instruction for this offense. As a result, the trial c ourt, with the agr eement o f both par

ties, designed an instru ction tha

t tracke d the lang

uage o f the stat

ute. The statu te a nd the instruction both contained the word “int entional l y.” We cannot find that de livering an
agreed-to non-IPI

instruction, when no IPI

instruction was available and the given i n struction tracked the statute, challenged the integrity of the judici al process, and defendant has not cited us a case to the con trary. See People v. Thompson , 238 Ill. 2d 598, 615 (2010) (although trial court erred by failing to instruct potential jurors that defendant did not have to offer evidence, this error did not rise to the level of pla in error under the second prong)

. ¶ 107 Defendant

argues in her brief to this court that the err or was e levated

to th e level of-18-

fundamental or plain error when the State allegedly

argued in its closing statement that it did
nothave to

prove anintent by

defenda nt to kill or

seriously injure the dog. I n support o f this
argume nt, defenda

nt cites a nd quotes–

in part–a passage from the State’sclosing statemen t. ¶ 108 That

is sim ply not wh at the pr

osecutor said. The two wordsquoted by

defenda nt, “no intent,” are plucked out of context. What the prosecu tor actu ally

said is that the State did not have to prove a

n intent “ to kill the d

og.” I n this par t of the Sta

te ’s closing statement, the prosecutor argued:

“Let’s talk abou

t defend ant’s inte

nt. Th e defense attorney

said that she didn’t intend to kill that dog. That’s not the law.” The statute, as the prosecutor then immediately pointed out, refe rs to both “serious injury or death.” Thus, we f

ind no factual basis to su pport def endant’ s argum

ent that th

e State misstated the law in

its closing

argume nt. ¶ 109 In addition, the three cases cited by defendant are distinguishable. First, in People v. Ogunsola
, 87 Ill. 2d 216 (1981), our supreme cour t found plain error

where the jury instruction listed the elements of the offense but omitted one. Ogunsola
, 87 Ill. 2d at 221-22. In Ogunsola , the trial court instructed the juro

rs that, in order to find defendant guilty , they had to find two propositions true. Ogunsola
, 87 Ill. 2d at 219. The court then listed these two propositio ns, prefaced by “ ‘[f]irst’ ” and “ ‘[s]econd.’ ” Ogunsola , 87 Ill. 2d at 219. Our supreme court reversed finding the instruction misleading. Ogunsola , 87 Ill. 2d at 223. By
contras t, in the case at bar, the instruction did not purportto list or e numerat e the ele ments of the crime. The instruction merely repeated the statutory

language. Thus, there wa s no element that was specifically omitted, as was the case in Ogunsola

. ¶ 110 Second, in Peoplev. Grant , 101 Ill. App. 3d 43 (1981), the statute defining the offense didnot itself list any required mental state

. Grant , 101 Ill. App. 3d at 47. The required me ntal
state was described in another

statute. Grant , 101 I

ll. App. 3d

at 47-48. Thus, the instruction, which tracked only the

defining statute, omitted any intent requirement and turned the crime into a strict liability crime. Grant , 101 I ll. App. 3d at 47-48. The appe llate cou rt found t his omission to be reversible error. Grant , 101 Ill. App. 3d at 48. By contr ast, in the case at bar, there was no danger of the jury mistaking this crime for a strict liability crime, since the word “intentionally” was in the statute de fining the offense. ¶ 111 Third, People v. Williams
, 181 Ill. 2d 297 (1998), found noplain error, even t hough the oral jury instructi ons adde d an extra phrase t o the second degree murder instruction where, first, the oral instruction was proper; second, “defend ant did not present a substantial defense–the evidence

against the defendant was overw helming”; and

third, the jury had an opportuni ty to deliberate for an hour after receivi ng the corr ected w ritten ins tructions

. Williams
, 181 Ill. 2d at 319-20. This case is distinguishable, since the distinction between oral and written instructions has no application to the case at bar. ¶ 112 Finding the cases cited by defendant distinguishable, we adher e to ourconclusion that the integrity of

the judicial process was not undermined by an agreed-to non-I

PI instruction, when no IPI

instruction was available and the given instruction tracked the sta tute and stated the law.-19-

¶ 113 B. Not Ineffective Assistance of Counsel ¶ 114 Defendant

c laims that her trial counsel was ineffective for failing to raise the issue of specific in ten t. In Illinois, claims of ineffe ctive as sistance

of counse l are g overned

by t he rule
set forth in the United Sta

tes Supre me Court case of Strickland v. Washington , 466 U.S. 668 (1984), which was adopted by the Illinois Supreme Court in the case of People v. Albanes e , 104 Ill. 2d 504 (1984). People v. Petrenko , 237 Ill. 2d 490, 496 (2010). ¶ 115 The Strickland

rule is a two-prong test. To prevail, a defendant must show both (1) that counsel’s performance was deficient; and ( 2) that this deficient performance prejudiced defendant

. Petrenko , 2 37 Ill. 2 d at 49 6 (cit ing Strickland , 466 U.S. at 687). To satisfy the first prong, a defendant must show that co unsel’s p erforma

nce wasobjectiv ely

unreaso nable under prevailing professional norms; and to satisfy the second prong, a

defendant must show that there is a reasonable probability that, butfor coun sel’s unp rofessio nal err

ors, the r esult of the proceeding would have been different. Petrenko , 237 Ill. 2d at 496-97 (citing Strickland , 466 U.S. at 694). ¶ 116 Although the Strickland test is a two-prong test, our analysis can pr

oceed in any

order. If a court finds that defendant was not prejudiced, it may dismiss on that basis alone, without further analy sis. Albanese , 104 Ill. 2d at 527. ¶ 117 For the reasons already discussed above, we find that defendant was not prejudiced, since the evidence on this element was n ot closely

balanced and thus t

here is n ot a rea sonable probabil ity t hat the r esult of th e proce eding w ould have

been dif ferent

.

¶ 118 II . Jury Note ¶ 119 Defendant

claims that the jury’s note a sked, in essence, wh ether de fendant’s omission in failing to remove the chain could qualify as an “act,” as the offense requires. The charged offense requir ed the State to prove that defendant intentionally committed “an act” that caused ser io us i nj ury o r de ath to a co mp ani on a ni mal . 51 0 IL CS 7 0/3.02 (West 2006). Defendant

claims that the jury could find her guilty only

if the State provedthat she was the last person to take the affirmative act of placing the collar on the dog’s neck. ¶ 120 C laimin g that an omission is not an act, defendant argues that the trial cour t erred by failing to respond to the jury’s note with an instruction on this alleg ed point of law. Defendant

conced es that he r trial c ounsel did not ra

ise this issue below and thus we may review this alleg ed erro

r only for plain error. Piatkowski , 225 I

ll. 2d at 56 5; Woods , 214 I ll. 2d at 471. Defendant also asks us to find that she received ineffective assistance of counsel due to her trial counsel’s claimed failure to request such an instruction. Petrenko
, 237 Ill. 2d
at 496-9 7 (cit ing Strickland , 466 U.S. a t 694). Ge nerally , we review a tri al court ’s respo nse to a jury note, only

for an abuse of discretion. People v. Maldonado , 402 Ill. App. 3d 4 1 1, 431 (2010). ¶ 121 Defendant’s argument has no legal b asis. The Illinois Criminal Code of 1961 expressly provides that an “ ‘[a]ct’ includes a failure or omission t o take a ction.” 720 IL CS 5/2–2 (West 2006). In addition, the Code provides that “a voluntar y act” inc ludes “a

n omission to perform a duty.” 720 I

LCS 5/4–1 (West 2006). If the re was an y doubt about the clea r meaning of our statutes, our supreme court has expressly stated that “the Criminal Code has-20-

eliminated the distinction between ‘omission’ and ‘act.’ ” People v . Caruso , 119 I ll. 2d 376, 383 (1987). Thus, defendant’s claimed distinction betwee n an “act” and an “omission” has

no legal basis in Illinois criminal law. I f th e trial court had instructed the jury in the way defendant suggests, it would have bee n error. ¶ 122 In addition, we observe t hat the jurycould have found defendant guilty based on her omissi on or on her own affirmative actions. Defenda nt concedes that she committed th e affirmative actions of purchasing Carmello to be the family dog and purchasing a heavy

tow chain to wrap a round his neck. Defendant committed

the aff irmative action of delega ting to her 12-year -old son the responsibility of periodically taking this heavy chai n off t he dog. This continued, even after a community service officer, whose testimony went unref uted, testified that he specifically

told defendant

that the tow chain was not an appropriate collar for a dog and di rected defendant to chang e it. As the veterinarian testified, a 12-y ear-old cannot be legall y respo nsib le for a dog. Thus, the jury ’s verdi ct could

have been based on defendant’s omissions or on her affirmative actions in delega ting res ponsibil ity to and supervising he r 12-year-ol d son, and in purchasing a heavy tow chain for the purpose of wrapping a round her dog’s neck and in continuing to use it, after specifically being directed n ot to use it asa collar. ¶ 123 Defendant

also cla ims on appe al that the trial co urt’s re sponse wa s error , becau se it permitted the jury to consider a legal theory, namely , omission, that defendant had not been permitted to discuss in

closing argume nt. Defendant’s brief to this court fails to provide any cites to th e recor d to suppor

t this claim. ¶ 124 Not only

did defend ant di scuss her all eged fai lure t o act i n clos ing a rgumen t, bu t rebutting this claim was one of the principal points of her closing. Defense counsel discussed
at length why

the evidence was consistent with her testimony that

she had first discovered
any injury on her dog only

hours before bringing Carmello to the hospital and that she ha d

re sp on de d q ui ck ly a nd to th e b es t o f h er ab il it y. ¶ 125 For these reasons, we reject defendant’s claims (1) that an omission is not an act; (2) that the State had to pro ve beyond a reasonable doubt that she was the last person to place the collar on the dog’s neck; and (3) that defenda ntwas prevented

from arguing ag ainst omission during closing

statemen

ts. We find t

hat the tr ial cour t did not a buse its dis cretion in respondi ng t o the jury’s note. F inding no error, we cannot find any plain error. People v. Hanson
, 238 Ill. 2d 74, 115 (2010) (“Finding no error, our plain -error

analy sis ends here.”).

¶ 126 II I. Miranda Rights ¶ 127 Defend ant claim s on appe al that the trial cou rt should h ave supp

ressed h er state ments on the ground that she was not paying a ttention when a police officer advised her of he r Miranda rights. ¶ 128 In her writ

ten pret rial supp ression mo tio n, defendant asserted two grounds f o r suppressing her statements, neither of which are raised on

this appeal. First, she claimed that she was not informed of her Miranda rights a fter he r arre st and prior to questioning by police officer “D. Sc hmit t.” S econd , she c laim ed tha t the q uesti onin g c on tinued after she “had elected to remain silent and/or had elected to consult with an attorney .”-21-

¶ 129 At

the ensuing pretrial hearing, the defense waived opening stat ement. Howe ver, in clo sing argument, defense counsel fr amed the issue as a factual question about whethe r defendant had been “read

her Miran da rights. ” The defense f ramed the issue a s a simple credibi lity

dispute betweendefendant, who testified that she had not been read her rig hts, and the police officer who testified that she had. Defense counsel arg ued that his client had testified credibly, while the police officer’s testimony

was undercut by

the lack of a written waiver and the lack of a note in the police re port to indicate that warnings were provided. ¶ 130 After

listening to counsel’s argument, the trial court found, based on the evidence, that Officer Schmitt had, in fact, read defendant her Miranda rights. The trial court then went on
to remark that “perhaps the defendant was not paying

attention” and defendant “was so upset that she probably wa sn’t paying much attention.” The trial court then stated that “[t]he law is n ot whether or not the defendant hears, as long as the officer takes reasonable me asures to give Miranda warnings and there’s some ty pe of acknowledgment.” Apparently f inding bothreasona

ble meas ures by

the offic ers to pr

ovide wa

rnings, as well a s some acknowl edgmen

t by defenda nt, the tri al court

then deni ed defe

ndant’s m otion to sup

press. ¶ 131 On appeal, defendant does not dispute that she was read her Miranda rights, but rather she arg ues that s he was to o upset to p ay attention to them. ¶ 132 On appeal, the State claims that, by failing to argue before

the trial court that

defendant

was not paying a

ttention to the Miranda warnings, defendant has waiv ed this issu e on appe al. If the issue was waived, we could review i t only for plai n error. Piatkowski , 225 Ill. 2d at 565; Woods , 214 Ill. 2 d at 471. However, we do not have to decide whe ther the issue was waived s ince we

find, on th

e recor d before us, that there wa s no erro r at all. ¶ 133 When reviewing a trial court’s ruling on a motion tosu pp re ss ev id en ce , w e a pp ly a twopart standard of

review

. People v. Johnson , 237 Ill. 2d 81, 88 (2010). First, “we g ive deference to the factual findings of th e trial c ourt, and we w ill reject those findings on ly if they are against the manifest weight of the evide nce.” Johnson , 237 Ill. 2d at 88; People v. Bridgewater , 235 Ill. 2d 85, 92 (2009). ¶ 134 Second, we make our “ ‘ “own assessment of the fac ts in relation to the issues,” ’ and review de novo the trial court’s ultimate legalruling as to whether suppression is warranted.” Johnson
, 237 Ill. 2d at 8 8-89 ( quot ing People v. Cosby , 231 Ill. 2d 262, 271 (2008), quoting Peoplev. Luedemann , 222 I ll. 2d 530, 5 42-43 (20 06)); Bridgewater , 235 Ill. 2d at 92- 93. In addition, we m ay aff

irm the trial court’s ruling on any basis found in the record. Johnson
, 237 Ill. 2d at 89. ¶ 135 First, we cannot find that the trial co urt’s factual findings were ag ainst the manifest weight of the evidence. In the

case at bar, the trial cou rt did not d

efinitiv ely find t

hat defendant was payin g no attention. Rather, the trial co urt c oncluded that defendant “p ro ba bl y” was not paying “much attention.” However, the trial court did find that there was

an “acknowl ed gm en t” by defend ant to the rea ding o f her ri ghts. At th e pretr ial he aring, Officer Ziebell testified t

hat, when defenda

nt was ask

ed if she understo od her ri ghts, defendant did respond, although the response was an obscenity . At the sub sequ ent trial
, Officer Schmitt also testified that defendant responded to the reading of Miranda warni ngs withan obscenity. Th

us, we cannot hold that the trial court’s factual finding of an-22-

acknowledgment was aga inst the manifest weight of the evidence. ¶ 136 Second, we must review de novo the trial court’sultimate legal rul ing as to whether suppression was warranted. Johnson , 237 I ll. 2d at 88-8 9. To do tha

t, we must

set forth the releva nt law concer ning Miranda

. ¶ 137 When a defendant moves to suppress his or her statements based on an alleged Miranda violation, the State

has the burden at a suppression hearing to prove
, by a preponde rance of the evidence, that defendant waived his or her Miranda rights. Berghuis v. Thompkins , 560 U.S. __, __, 130 S. Ct. 2250, 2 261 (2010 ); People v. Daniels , 391 Ill. App. 3d 750, 780 (2009). “If the State establishes that a Miranda warning was given and the accused made an uncoerced

statement,” “[t]he prosecution must make the additional showing that the accused understood these rights.” Berghuis , 560 U.S. at __, 130 S. Ct. at2261; Daniels , 391 Ill. App. 3d at 780. On

appeal, defendant does not dispute either that a Miranda warning was given

or that she made an uncoerced statement. She claims only that the prosec ution failed to make “the additional showing,” by a preponderanc e of the e

vidence , that she

understo od her ri ghts. See Berghuis , 560 U.S. at __, 130 S. Ct. at 2261. ¶ 138 In Berghuis
, the United States Supreme Court found that “[t]here was more than enough evidence” in the record

before it to conclude that defenda nt unders tood his Miranda rights, where defendant could understand and read English, where

the police provided both oral and written warnings, and where defendant read

aloud one of the warnings. Berghuis , 560 U.S.
at __, 130 S. Ct. at 2261. B y st ress ing that the se fact s cons titu ted “m ore th an eno ugh evidence” to establish unders tandi ng, the Court indicated that these facts were not a minimum or

baseline but were instead above whatever minium or basel ine was r equired to establish understanding by a preponderance of the evidenc e. ¶ 139 Alth ough our case differsfrom Berghuis

in thata writte

n warnin g was not provide d in the cas e at bar , writ ten wa rnings have never been required. For e xample, in a case decided after Berghuis , this cour

t held tha t an oral Miranda warning, followed by an “ ‘uhhuh’ ” by defenda nt, was sufficient to establish that defendant understood his ri gh t to remain silent. Peoplev. Polk , 407 I

ll. App. 3d

80, 94-95 (2010). S ee also Peoplev. Calhoun , 382 Ill. App. 3d 1140, 1148 (2008) (holding tha t d efendant understood his rights when he nodded af ter they were orally rea

d). ¶ 140 In the case at ba r, there is no question that defendant was read her Miranda rights, that she understood English, and that she made a verbal re sponse to the question of whether she understood her Miranda rights. At the suppression hearing, Officer Ziebell, whom the trial
courtspec ifically

found to be

a credi ble witne ss, testif

ied that O fficer

Schmitt adv

is e d defendant of her Miranda rights w

hen she w as first

arrested at theBriar Hill address. Then Officer Ziebell testified, “when [Officer Schmitt] asked her if she understood, she said, ‘Yo u’re a b*** a*** motherf***.’ ” Similarly , at trial, Officer Schmitt testified tha t h e adviseddefendant of her Miranda rights and that he speci fically asked her whether she understood those rig

hts. He testified that she responded to his question about understanding by say ing that he was a “b*** a*** motherf***.” ¶ 141 If we

were to hold that every

defendant who is upset

at being arrested or who cursed the arresting officer did not understand his or her Miranda rights, a valid waiver would bec ome-23-

a rare event. I

t would not sur prise us to fin d that a lot of defendants are upset at finding themselve s arres ted, and a lot of def endants c urse the office r who ar rests the m. ¶ 142 Defendant

asks us to

compare her situationto the case of People v. Roy , 49 Ill. 2d 113 (1971), where the Illinois Supreme Court held that defendant was too drunk to understand his rights. Roy , 49 I

ll. 2d at 115 (police officer testified at suppression hearing that defendant

was drunk). See also Pe ople v. Garci a , 165 Ill. 2d 409, 424 (1995) (affirming trial court’s fin ding that defenda

nt was not

too intoxicated to waive Miranda rights) . Similarly , in Daniels
, this court held that a def endant la cked the mental capacity to understand her Miranda rights, where her I Q was less than 64 and thus in the lower one-tenth of 1% of other adults her age, and where two out of the three examining doctors found that she lacked the mental capacity

to understand Miranda rights. Daniels , 391 Ill. App. 3d at 783, 786-87. But

see In re W.C.
, 167 I

ll. 2d 307, 3 30, 335 (1 995) (hol ding tha t a mentally r

etarde d 13-y

ear-ol d with an I Q of 47 or

48 could v alidly

waive his Miranda rights). ¶ 143 In the case

at bar, d efenda nt states in her ap pellate brief that she was not drunk. In addition she has never argued, e ither before the trial court or before this cour t, that she was under the influence of drugs or that she lacked the innate mental capacity to comprehend the warning s. Instead, defenda nt asks us to equate he r degre e of emotional upset with being drunk. ¶ 144 It is hard for us to find that she was so upset as to not understand the events around her, when she immediately understood, without being told, that the veterinarian had contacted the police, and when she offered, without any prompting, statements that she hop ed woul d
exonerat e her, suchas “[t ]hat dog ain ’t even mine. ” Thus , revi ewing de novo the trial court’s ultimate legal ruling, we find

the State satisfied its burden of establishing a knowing waiver by a preponde

rance of the evidence.

¶ 145 IV. Prosecutor’s Closing Arg ument ¶ 146 Defendant

claim s that it was error f or the tri al court

to allow th

e State in its closing argument to refe r to defendant’s prior use of profanity. On a

ppeal, defendant concedes that this issue was not raised at trial, but argues for reversal on the grounds (1) that the er ror rose to the level of plain error, or (2) that trial counsel was ineffe ctive fo r failing to object to it. Since we find no error, we need not consider de fendant’s claims of plain error and ineffective assistanc e of coun sel.

¶ 147 A. Standard of Review ¶ 148 It is not clear whether the appropriate standard of review for this issue i s de novo or

abuse of discreti on. This c ourt has p reviousl y ma de this sa

me obser vation in both Peo

ple v. Phillips
, 392 Ill. App. 3d 243, 274-75 (2009), and People v. Johnson , 385 Ill. App. 3d 585, 603 (2008). The Second District agreed with our observation that the standa rd of review for closing remarks is an uns et tled issue. People v. Robinson , 391 Ill. App. 3d 822, 839-40 (2009). ¶ 149 The confusion stems from an appare nt conflict betwee

n two supr

eme court ca ses: People-24-

v. Wheeler

, 226 Ill. 2d 92, 121 (2007), and People v. Blue , 189 I ll. 2d 99, 128, 132 (2000). In Wheeler, our supreme court held: “Whether statements mad e by a prosec utor at closing argument were so eg

regious that they

warrant a new trial is a legal issue this court reviews de novo .” Wheeler, 226 I ll. 2d at 121. Howe ver, the supreme court in Wheeler cited wit h approval Blue , in which the supreme court had previously applied an ab use-of-discretion standard. Wheeler, 226 Ill. 2d at 121. I n Blue and numerousother ca ses, our s upreme court had held that

the substance and style

of closing argument is within the trial court’s discretion, and that the trial court’s decision will not be reversed absent an abuse of discre tion. Blue , 189 Ill

. 2d at 12 8, 13 2 ( “w e c on cl ud e t ha t t he tr ia l c ou rt ab us ed it s d is cr et io n” by permittin g certain prosecu torial re marks in c losing) ; People v. Caffey , 205 Ill. 2d 52, 128 (2 001); People

v. Emerson , 189 I

ll. 2d 436, 4 88 (2000) ; People v. Williams , 192 Ill. 2d 548, 583 (2000); Peoplev. Armstrong
, 183 Il l. 2d 130, 1 45 (1998) ; People v. Byron , 164 Ill. 2d 279, 295 (1995). Our supr

eme cour t had rea soned: “B ecause

the trial court is in a better position than

a reviewing court to determine the prejudicia l effect of any

remarks , the scope of closing argument is within the trial court’s discretion.” People v. Hudson , 157 Ill. 2 d 401 , 441 (1993). Follo wing Blue and other supreme court cases like it, this cour t had cons i stently applied an abuse-of-discretion standard. People v. Tolliver
, 347 Ill. App. 3d 203, 224 (2004); People v . Abadia , 328 Ill. App. 3d 669, 678 (2001). ¶ 150 Since Wheeler, appella te courts ha

ve been divided r egard ing the a ppropria te standardof review. The second and third divisions of the First District have applied a n ab use-ofdiscretion standar

d, while th

e Third a nd Fourt h Distric ts and the

fifth division of

the Firs t District have applied a de novo standard of review. Compare People v. Love , 377 Ill. App. 3d 306, 313 (1st

Dist. 1st Div. 2007) (Wolfson, J.), and People v. Avere tt , 381 Ill. App. 3d 1001, 1007 (1st

Dist. 3d Div. 2008) (Quinn, P.J.), with Peo p le v. McCoy , 378 Ill. App. 3d 954, 964 (3d Dist. 2008), People v. Palmer , 382 I ll. App. 3d

1151, 1160

(4th Dist. 2008), Peoplev. Ramos , 396 Ill. App. 3d 869, 874 (1st Dist. 5th Div. 2009) (Toomin, P .J.), an d People v. Vargas , 409 Ill. App. 3d 790, 797-98 (2011) (Epstein, J.). ¶ 151 However, we do not need to resolve the issue of the a ppropriate standard of review at this time, bec ause

our holding in this c asewould be the same under either standard. This is the

sameapproach

that we took in both Phillips and Johnson , and the same approach taken by the Second Di strict in

its Robinson opinion. Phillips , 392 I ll. App. 3d

at 275; Johnson , 385 Ill. App. 3d at

603; Robinson , 391 I

ll. App. 3d at 840 (“In any event, like the Johnson court,

we leave the resolu

tion of thisissue to a

nother da y, a s our conc lusion would be the sam e applying e

ither standard.”).

¶ 152 B. Substantial Prejudice ¶ 153 A State’s c losin g will lead to reversal only if the prosecu tor’s remarks create d “substantial prejudice.” Wheeler, 226 I ll. 2d at 12 3; People v. Johnson , 208 Ill. 2d 53, 64 (2003); People v. Easley , 148 Ill. 2d 281, 332 (1992) (“The r emarks b y the prosec

utor, whil e improper, do not amount to substantial prejudice.”). Substantial prejudice occurs “if the improper remark s consti tu ted a material factor in a defenda nt’s conviction.” Wheeler, 226 Ill. 2d at 123.-25-

¶ 154 When reviewing claims of prosecutorial misconduct in closing arg ument, a r eviewing
court will consi der the e

ntire clo sing ar

gumentsof both the prose cutor and the def ense at to rn ey, in order to place the remarks in context. Wheeler, 226 I ll. 2d at 12 2; Johnson
, 208 Ill. 2d at 113; People v. Tolliver , 3 47 Ill. App. 3d 203, 224 (2004). A prosecutor has wide latitude during closing argument. Wheeler
, 226 Ill. 2d at 123; Blue , 18 9 Ill . 2d at 1 27. “In closi ng, the prosecutor ma y c omment on th

e evidence and a

ny f air, re asonable

infere nces it yields ***.” People v. Nicholas , 218 Ill. 2d 104, 121 (2005). ¶ 155 “Stateme

nts will n ot b e held improper if they were provoked or invited by the defense counsel’s argument.” People v. Glasper , 2 34 Ill

. 2d 173, 204 (2009). F

or example , in Glasper
, defendant

argued that the prosecutor had “ shifted the burden of proof to defendant” when, in response to defendant’s claim of a coerc ed confession, the prosecutor had state d in rebuttal closing: “ ‘Where’s the evidence of that?’ ” Glasper , 234 I ll. 2d at 21 2. Our sup

reme court h e ld that the

comment “ did not shif

t the burd

en of pro of to def

endant,” but that it merely “pointed out that no evidence existedin this case to support defendant’s theory” and that it was “invited by defe nse counsel’s argument.” Glasper , 234 Ill. 2d at 212.

¶ 156 C. Statements at Issue ¶ 157 At trial, Office

rs Schmitt a

nd Zieb ell testified to defendant’s use of profanity during her
arrest. Specifically, def

endant statedthat the veterinarian was a “f*** b***” for calling the police, and she responded to Officer Schmitt’s question about whether she understood her Miranda rights by c alling Offi c er Schmitt a “b*** a *** mother

f***.” D efenda

nt also testified that, dur

ing her arrest, she state d that the

veterin arian wa s a

“f*** b***” for calling the police. ¶ 158 During the State ’s first closing argument, the prosecutor made no ref erence t o defendant’s use of profanity . The first reference during closing argume nts to def endant’ s use of profanity wa s made during the defense closing. Specifically, the def ense stated: “They arrest her at her house. You hear d what the words are. She’s upset. I would not have advised her to behave that way with police off

icers. She was upset. She behaved that way. That’ s not what’s at issue here. *** So Ms. Land is angry

when she gets arrested. She say s some things that s he shouldn’tsay. I

t’s kind of rough in her sty le and her manner, but the thingyou have to–the State has to prove her guilty beyond a re asonable doubt.” ¶ 159 Then, two ti mes du ring the State’s rebuttal closing, the prosecutor quoted defendant’s obscenities. First, the prosecutor stated:

“That f*** b*** called the cops. You know now wh at that f*** b*** is; Dr. McCratic, a woman who has wanted to be a veterinaria n since she was five years old, a woman who has spent her entire adult life try ing to help animals.” Second, the prosecutor stated: “The police are doing their job when they come to her house and investigate what happened to the dog, as the police ought to do, and what are the police? The police

are someb***-a*** motherf***s coming to her house. How dare they come to her-26- house and check on what she had done to that dog .” The implication that the State wanted the jury to draw from

these facts was that defendant could become extremely a

ngry at a completely innoc ent

individual–such as a dog. Based on these facts, the prosecutor arg ued: “welcome to the world that Carmello got to live in.” ¶ 160 During the State ’s initial c losing, t he prose cuto r had ar

gued th at th e chain was “an instrumentof cruelty a

nd torture.” Defendant’s ange r was a relevant co nsidera ti on for the jury in assessing defendant’s intent in using, what the prosec utor argued, was an instrument of torture. Thus, we find no error.

¶ 161 V. Fines and Fees ¶ 162 Defendant

claims that the trial court erred when it imposed: (1) a “Court System” fee

of $5 for a vio lation of t

he I llinois Counties Code (55 IL CS 5/5–1101(a) (West 2008)); and (2)

a $20 charge pursuant

to subsection c of

section 10 of the Violent Crime Victims Assistance Act (725 IL CS 240/10(c) (West 2008)). The State also asks us to vacate these charg es. After reviewing the authorities cited by the parties, we order these charg es vacated. ¶ 163 In addition, the State asks us to impose a different charge unde r a diffe rentstatutor y subsection that was not imposed by the trial court. H owever , the State does not c ite a ca se

or statute to support its proposition that a reviewing court may or should impose a fee or fine that the trial court allegedl

y failed to impose. Roiser v. Cascade Mountain, Inc. , 367 Ill. App. 3d 55 9, 56 8 ( 20 06 ) ( by f ai li ng to of fe r s up po rt in g l eg al au th or it y or “a ny r easone d argument,” plaintiff

s waived consider ation of th

eir arg ument); People v. War

d , 215 Ill. 2d 317, 332 ( 2005) (“

point rais ed in a br

ief but no t supporte d by

citation t o relevant authority

*** is theref

ore for feited” ); In re Marriage of Bates , 212 Ill. 2d 489, 517 (2004) (“A reviewing court is entitled to ha ve is sues clearly defined with relevant authority cited.”); Ferguson v. Bill Berger

Associates, Inc. , 302 I

ll. App. 3d 61, 78 (1998) (“it is not necessary
to de cide th is question

since the defenda nt has wa ived the i ssue” by

failing to offer case citation or other support as Supreme Court Rule 341 requires). Thus, this issue is waived.

¶ 164 CONCLUSION ¶ 165 For

the foregoing reasons, we affirm defendant’s conviction and vaca te the $5 and $20 charges imposed pu

rsuant to secti on 5–110 1(a) (55 IL CS 5/5–1101(a) (West 2008)) and section 10(c) (725 IL

CS 240/10(c) (West 2008)). ¶ 166 Affirmed.

¶ 167 PRES IDING JUST ICE GARC IA, speci ally conc urrin g: ¶ 168 I conclude the def endant forfeited the jury

instruction issue she attempts t o raise under
p lainerror. See People v. Herron , 215 Ill. 2d 167, 187 (2005) (the burden of persu asio n under both prongs of plain error rema ins on the defendant). ¶ 169 To trigger plain error review under prong

one, a defendant must argue that the evidence

was closely balanced . See Pe ople v. Santiago , 409 I ll. App. 3d

927, 930 n. 1 (2011) (

plain

error claim is forfeited when the defendant doe s not arg

ue that the evidence was c losely-27-

balanced). The “c lose ly balance d” requirement stems from the concern that wher e the evidence is closely

balanced “theerror alone severely threatened to tip the scales of justice agains t[t he defendant].” Herron , 215 Ill. 2d at 187. I llinois Supreme Court Rule 341 (eff. July1 , 2008) requires that an appellant’s brief contain “ citation of the authorities” r elie d
upon for the argument. See Wilson v. Coo k County , 407 Ill. App. 3d 759, 775-76 (2011) (“Failureto establish the facts and authority for an argument supports a finding that a n issue is waived under Rule 341.”). I n the section in her ma

in brief r aising t his claim, the defendant fails to cite a s ingle c ase in support of

this argument. Absent citation to authority , I find the defendant has not properly r

aisedthis prong-one plain error claim. See People v. Nieves , 192 Ill. 2d 487, 503 (2000) (citing Supreme Court Rule 341(e)(7) (now Rule 341(h)(7))). ¶ 170 To trigger plain error r eview under prong two, a defendant must prove that the error

was

so serious th at it

affected the fairness of the trial and challenged the integrity of the judicial
process

. Herron
, 215 Ill. 2d at 177-79. The defenda nt attempts to show her trial was fundame ntally flawed with the claim tha t “the Sta te effectively

used the faulty instructions on intent to circumvent the entire trial.” ¶ 171 “A fair trial, however, is different fr om a perfect trial. [Citation.] The plain-error doctrine does not instruct a revie

wing court to con sider all forfeit ed erro rs. [Citatio n.] It i s no t a ‘general saving clause preserving f or review all errors aff

e cting substantial rights whether

or not they have

been brought to the attention of the trial court.’ ” Herron , 215 Ill. 2d at 177 (quot ing People v. Precup , 73 Ill. 2d 7, 16 (1978)). ¶ 172 Becau se there is no pattern instruction for the offense of animal cr ue lty, the jury

was gi ven an inst

ruction that both sides agreed tracked the la nguage of the statute. “[A] jury instruction error rises to the level of plain error only when it ‘creates a serious risk that the jurors incorrectl y conv icted the defenda nt becau se they

did not unde

rstand the applic able law, so as to severely thre aten the fairness of the trial.’ ” Herron , 215 I ll. 2d at 193 (quoting Peoplev. Hopp , 20 9 Il l. 2d 1, 8 (2008)). I find nothing in the g iven instruction that might have led the ju

ry to wrongly

convict the defendant; nor has the defendant prope rly raised such a cl aim. ¶ 173 Fi na ll y, having rejected the defendant’s plain error claims, it necessar ily follows that

the defendant cannot e stablish ineffec tive assis tance of counsel b ased on th

e same e rror be cause the defendant

cannot show she was prejudiced by counsel’s fa

ilure to object to the instruction givento the jury. See People v. Williams , 391 Ill. App. 3d 257, 271 (2009) (“Having found

no plain error based on the erroneous jury instruction, we concl ude the defen dant is in no better position by placing fa

ult on trial counsel for [her] failure to object to the erroneous instruction ***.”). ¶ 174 I specially

concur.