2014 IL App (2d) 12 1203 No. 2

- 12

- 1203 Opinion filed August 5, 2014

______________________________________________________________________________ IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT

______________________________________________________________________________ T HE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff

- Appellee, ) ) v. ) No. 12

- CF

- 697 ) BERNARD THOMAS, ) Honorable ) Jo hn J. Kinsella , Defendant

- Appellant. ) Judge, Presiding.

______________________________________________________________________________ JUSTICE SCHOSTOK delivered the judgment of the court , with opinion

. Justice Spence concurred in the judgment and opinion

. Justice Hudson specially concurred, with opinion.
O PINION ¶ 1 On September 12, 2013, a jury found the defendant, Bernard Thomas, guilty of one count of retail theft (720 ILCS 5/16

- 25(a)(1) (West 2012)). The sole issue raised in this appeal is the constitut ional validity of the trial court ’s statement to the jury

— in response to a written question asking for the legal definition of the term “reasonable doubt”

— that “[i] t is for you to determine.” In arguing that this response violated his due process right to have the State held to the burden of proving his guilt beyond a reasonable doubt, t he defendant relies on two recent appellate court
cases, People v. Turman , 2011 IL App (1st) 091019, and People v. Franklin , 2012 IL App (3d) 100618, which h e ld that it is reversible error per se for a trial court to tell a jury that it must define “reasonable doubt” for itself. We view this holding as questionable under applicable precedent of the U nited S tates Supreme Court and the Illinois Supreme Court. We instead hold2014 IL App (2d) 121203

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- that a court must consider the totality of the circumstances and determine whether there i s a reasonable likelihood that the jury applied a lesser standard than beyond a reasonable doubt. We conclude that this standard is not met here and therefore affir m the defendant’s conviction. ¶ 2 BACKGROUND ¶ 3 The defendant was indicted on two counts of felony retail theft. Count I alleged that, on March 27, 2012, he took several bottles of liquor from a Jewel

- Osco store in Elmhurst with the intent to permanently depriv e Jewel

- Osco of the possession and benefit of the merchandise , having been previously convicted of theft (720 ILCS 5/16

- 25(a)(1) (West 2010)). Count II alleged the same retail theft, with the added element that the value of the liquor taken was o ver $300 (thereby increasing the sentence ( 720 ILCS 5/16

- 25(f)(3) (West 2010 ) )). ¶ 4 The jury trial commenced on September 11, 2012. During jury selection , the trial court made comments giving the prospective jurors an overview of the case, including the charges and

t he schedule of the trial. With respect to the State’s burden of proof, the trial court stated that : the State bore the burden of proving the charges beyond a reasonable doubt; the burden of proof

never shifted to the defendant; the defendant was presumed innocent of the char ges throughout the trial; at the end of the trial, if the State did not prove its case beyond a reasonable doubt, the jurors would be required to find the defendant not guilty; and if the jurors found that the State had sustained its bu rden of proof beyond a reasonable doubt, the y would be required to find the defendant guilty. The trial court did not make any comments about the meaning of the term “reasonable doubt.” ¶ 5 Nathan Bown, an assistant director for the Osco portion of the Jewel

- Osco store , testified that on February 11, 2012, he noticed that an unusual amount of liquor was miss ing from one of the shelves in a isle 7. He checked the surveillance video for the day before and saw an African

American man placing bottles of liquor ins ide his jacket, which was puffy and black with a furry2014 IL App (2d) 121203

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- lining at the neck. The man later walked out the northwest entrance of the store. Bown did not call the police , because he did not know who the man was, but he monitored a isle 7 closely after that. Bown later observed, via video, the same man stealing liquor from a isle 7 on February 20 and 29 and March 12, 14, and 27, 2012. As of March 27, he still had not contacted the police because he still did not know who the man was. However, he backed up the surveillance video to preserve it. ¶ 6 Rafael Lopez, a Jewel

- Osco employee, testified that he was working at the store on March 31, 2012. About 3 p.m. that day, Lopez saw a man leave the store through the entrance doors. The man, w ho walked right past him , was African

- America n and had a tattoo on his neck , and he was wearing a heavy winter coat with a furry lining, although it was a warm afternoon. Lopez noticed that he had a big bulge in his midsection. Lopez identified the defendant in court as the man he saw leaving the stor e on that day and as the man shown in photographs of a isle 7 taken on that day. Lopez continued to watch as the defendant approach ed the passenger side of a gold four

- door vehicle with an older African

- American man in the driver’s seat. The defendant got into the car. As the car drove away, Lopez was behind it and made a note of the number of the license plate, which had a “ handicapped ” emblem. At trial, he testified that the number was either 117346 or 117396 (he could not tell whether he had written down a “4” or a “9”). Lopez notified his manager. ¶ 7 On April 1, Bown learned that another potential theft of liquor had occurred on March 31. When he checked the surveillance video for that day, he saw the same man he had seen earl ier taking bottles of liquor and then walking out the northwest entrance. As on earlier occasions, the red lights on the anti

- theft towers activated. Bown called the Elmhurst police and gave them the surveillance video and the license plate number observ ed by Lopez. Lopez was2014 IL App (2d) 121203

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- interviewed by the El mhurst police, who showed him an array of six photographs. He identified a photograph of the defendant as the man he had seen leaving the store. ¶ 8 On April 5, Bown saw a man in the store who looked like the suspe ct in the surveillance videos. The man was pushing a cart containing some liquor bottles. Bown called the police. He then began following the man, whom he identified in court as the defendant. After he followed the defendant up and down a few aisles, t he defendant abandoned his cart and left the store. The defendant did not steal anything on April 5. Bown testified that he later determined , by looking at the video , t hat on March 27 the defendant had stolen six bottles of Ciroc vodka and three bottles of Hennessey cognac

. Bown also generated a receipt showing the total value of the liquor taken on that date, which exceeded $300 ($38.99 per bottle of Ciroc vodka and $32.99 per bottle of Hennessey cognac). ¶ 9 Police officer Alexander Kefaloukas of the Elmhu rst police d epartment testified that he went to the Jewel

- Osco store at about 5:30 p.m. on April 5, 2012, after a report was received about a potential theft in progress. He met with a store employee who gave him a description of a suspect, which he rel ay ed to other police officers. ¶ 10 Elmhurst police officer Michael Campise testified that he responded to the Jewel

- Osco store at about 5:30 p.m. on April 5. While there, he saw an African

- American man loitering outside the store. The man walked to a tan Chevy Lumina , which had a license plate with a

“ handicapped ” emblem and the number 117346, and got in. Campise told ot her officers to detain the car if it drove away. He later learned that this man was Horace Smith. ¶ 11 Campise received a report that the suspect was leaving the store, and he arrested the defendant. Kefaloukas joined him and they searched the defendant, who was wearing a black “poofy” jacket with fur on the hood. The defendant had a small amount of change in his pocket but no other money, and no credit or debit cards.2014 IL App (2d) 121203

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- ¶ 12 Elmhurst police officer Edward Coughlin interviewed the defendant at the police station

at about 6:30 p.m. He gave the defendant Miranda warnings. The defendant, who had a tattoo on the side of his neck, appeared agitated and said that he had not stolen anything. Coughlin told him that they were interested in prior incidents, not events at the Jewel

- Osco that day. The defendant said that he had been at the store to pick up some things for his wife. Coughlin expressed skepticism, not ing that the defendant had only six cents on him when he was brought to the police station. The defendant contended that a police officer on the street had taken his credit card. However, after Coughlin showed the defendant a surveillance DVD and mention ed the dates that the defendant had been seen in the store, the defendant admitted that he had stolen liquor from the store. The defendant stated that Smith would drive him to the store, where he would take bottles of liquor from the shelf and put them in his jacket. He would then sell the liquor on the street to get money for his heroin habit. His habit cost him about $60 per day. Coughlin had seen people under the influence of narcotics before and the defendant did not seem to be under the influence a t the time of the interview. ¶ 13 After closing arguments, the trial court instructed the jury. As part of the instructions, the trial court gave Illinois Pattern Jury Instruction s , Criminal , No. 2

. 03 (4th ed. Supp. 2009) ( here in after , IPI Criminal 4th No. 2

. 0 3 (Supp. 2009 ) ) :

“ The defendant is presumed to be innocent of the charges against him. This presumption remains with him throughout every stage of the trial and during your deliberations on the verdict and is not overcome unless from all the evidence in this case you are convinced beyond a reasonable doubt that he is guilty.
T he State has the burden of proving the guilt of the defendant beyond a reasonable doubt , and t his burden remains on the State throughout the case. The defendant is not required to prove his innocence.”2014 IL App (2d) 121203

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- ¶ 14 The ju ry sent out three notes during its deliberations. Only the second is at issue here. That note read, “ [W] hat is the legal definition of reasonable doubt?” The trial court commented to the parties:

“ It’s not the first time I h eard that question. I don’t think the law in Illinois has changed, nor the position of the Supreme Court. The only question is how do I wish to word my response. My inclination is to say: It is for you to determine; that is for you to determine.” The St ate assented; the defense suggested that the jurors be told that if they wanted to find the defendant not guilty, they should do so. The trial court then consulted the IPI Criminal and noted that it did not recommend any definition. The trial court’s wri tten response read, “It is for you to determine.” ¶ 15 The jury found the defendant guilty of count I and not guilty of count II. On October 12, 2012, the defendant was sentenced to six years’ imprisonment. After his motion to reconsider the sentence was deni ed, he filed a timely notice of appeal. ¶ 16 ANALYSIS ¶ 17 The sole issue on appeal is whether the trial court violated the defendant’s due process rights through its response to the jury’s note asking for the legal definition of “reasonable doubt.” The defendant concedes that he did not raise this issue in the trial court (through either a contemporaneous objection or a posttrial motion) and thus the issue is forfeited unles s the trial court’s actions amounted to plain error. The plain error doctrine allows a reviewing court to consider unpreserved error when “(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the2014 IL App (2d) 121203

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- judic ial process, regardless of the closeness of the evidence.” People v. Piatkowski , 225 Ill. 2d 551, 565 (2007). The first step in determining whether plain error exist s is determining whether an error actually occurred. People v. Naylor , 229 Ill. 2d 584, 593 (2008). ¶ 18 The defendant argues that, under Turman and Franklin , the trial court’s response to the jury’s question about the definition of “reasonable doubt”

— “It is for you to determine”

— was plain error. We begin by setting out the fundamental analysis applicable to this issue, as expressed by the United States and Illinois S upreme C ourts, before turning to an examin ation of
Turman , Franklin , and later decisions. ¶ 19 A . Constitutional Requirements ¶ 20 The requirement to correctly instruct the jury on fundament als such as the proper burden of proof is of constitutional dimension. “[T] he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship , 397 U.S. 358, 364 (1970). However, in considering whether a particular jury instruction violated the defendant’s due process rights, “the proper inquiry is not whether the instruction ‘could have’ been applied in an unconstitutional manner, but whether there is a reasonable likelih ood that the jury did so apply it.” (Emphasis in original.) Victor v. Nebraska , 511 U.S. 1, 6 (1994). ¶ 21 In 1994, the United States Supreme Court issued its decision in Victo r , in which it considered whether the jury instructions defining “reasonable doubt” in two state criminal cases violated due process. The Court began by laying out the analytical framework for such claims: “The beyond a reasonable doubt standard is a requirement of due process, but the Constitution neither prohibits trial courts from d efining reasonable doubt nor requires them to do so as a matter of course. [Citation.] Indeed, so long as the court instructs the jury on the necessity that the defendant’s guilt be proved beyond a reasonable doubt,2014 IL App (2d) 121203

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- [citation], the Constitution does not req uire that any particular form of words be used in advising the jury of the government’s burden of proof. [Citation.] Rather, ‘take n as a whole, the instructions [ must ] correctly conve [ y ] the concept of reasonable doubt to the jury.’ ” Id . at 5 (quoti ng Holland v. United States , 348 U.S. 121, 140 (1954)). ¶ 22 The Court then summarized the key issue: “The constitutional question *** is whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insuf ficient to meet the Winship standard

. ” I d . at 6

. In assessing this likelihood, the court should consider other instructions or comments to the jury that occurred during the trial. See id . at 13, 21

- 22 ( consider ing the other instructions given during the defendants’ trials , which provided context for the instruction s at issue). Thus, the standard to be applied in cases such as the one before us is : t aken as a whole, were the instructions to the jury such that there is a reasonable likelihood that the jur y understood those instructions as allowing a conviction under a lesser standard than proof beyond a reasonable doubt? ¶ 23 B . Illinois Supreme Court Precedent ¶ 24 There is no dispute that attempts to define the term “reasonable doubt” for jurors are discouraged in Illinois. In People v. Speight , 153 Ill. 2d 365, 374 (1992), the Illinois Supreme Court commented that “ [t]he law in Illinois is clear that neither the court nor counsel should attempt to define the reasonable doubt standard for the jury.” Reflecting this sentiment, there is no recommended jury instruction that would provide such a definition. See Illinois Pattern Jury Instructions, Criminal, No. 2.05 , Committee Note , at 78 (4th ed. 2000) ( “The Committee recommends that no instruction be given defining the term “ ‘ reasonable doubt. ’ ” ). 1

1 Nothing in Illinois’ s hands

- off approach to defining “reasonable doubt” for jurors is incompatible with Victor , in which the Court noted that due process neither requires nor2014 IL App (2d) 121203

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- ¶ 25 Nevertheless, it is equally clear that providing a jury with a definition of “reasonable doubt” does not necessarily constitute reversible error. A review of Illinois S upreme C ourt precedent on this issue demonstrates this: typically , the supreme court finds that giving such a definition either is not error or is harmless error. See , e.g. , People v. Lucas , 244 Ill. 603, 615 (1910) ( expressing no condemnation of the trial court’s instruction that the term means “a serious, substantial doubt and not a mere possibility of a doubt”; supreme court held this instruction was not error, noting that “reasonable doubt” need not exclude all possibility of doubt, as that state of certainty was almost unattainable in human affairs (internal quotation marks omitted) ); People v. Moses , 288 Ill. 281, 285

- 86 (1919) ( commenting that the giving of lengthy instructions i s unnecessary because “there is no better definition of the meaning of the words ‘reasonable doubt’ than th e words themselves” but adding that such lengthy definitions

a re not necessarily reversible error ; affirming the conviction ); People v. Malmenato , 14 Ill. 2d 52, 61 (1958) ( although supreme court discourag e d the practice of defining “reasonable doubt,” tri al court’s instruction on the topic was not error ); Speight , 153 Ill. 2d at 374

- 75 (although “neither the court nor counsel should attempt to define the reasonable doubt standard for the jury,” prosecutor’s comments were not reversible error in light of tr ial court’s immediate admonishment to the jury to disregard the comments ). ¶ 26 One of the few supreme court cases to find that an instruction defining reasonable doubt

was reversible error is People v. Cagle , 41 Ill. 2d 528 , 536 (1969), in which the t rial cou rt had

prohibits definitions of the term. Victor , 511 U.S. at 5. See also People v. Failor , 271 Ill. App.
3 d 968, 971 (1995) ( Victor did not conflict with the prevailing practice in Illinois of not defining “reasonable doubt” and trial court did not err in refusing to provide jurors with a definition of the term).2014 IL App (2d) 121203

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- instructed the jury that “a doubt, to justify an acquittal, must be reasonable, and it must arise from a candid and impartial investigation and consideration of all the evidence in the case and unless it [ meets a standard described at some length], it is insufficient to authorize a verdict of not guilty

. ” (Internal quotation marks omitted.) The supreme court held that this instruction improperly shifted the burden of proof to the defendant by implying that an acquittal must be justified, contrary to the presumption of innocence. In reaching this conclusion, the supreme
court noted that it had “repeatedly held that the legal concept of ‘reasonable doubt’ needs no definition .” Id

. Nevertheless , giving an i nstruction on th e concept was not necessar ily prejudicial or re versible error , so long as the instruction did not improperly minimize the State’s burden of proof or attempt to shift t hat burden to the defendant

. Id

. ¶ 27 In the years since Victor , the Illinois Supreme C ourt has only rarely addressed t he issue of defining “reasonable doubt ,” but the essential principles are unchanged. In People v. Keene , 169 Ill. 2d 1 (1995), a case involving prosecutorial comments about reasonable doubt, the supreme court reaffirmed that , although it is unwise, defini ng the term is not automatic error: “This court has cautioned against attempts by counsel as well as trial judges to explain the reasonable doubt standard. [Citation.] The danger is that, no matter how well

- intentioned, the attempt may distort the stand ard to the prejudice of the defendant. If sufficient prejudice results , reversal is warranted.” (Emphasis added.) Id

. at 24

- 25.
In Keene , t he court held that the prosecut or’s comments did not rise to the level of plain error. More recently, the supreme court issued People v. Green , 225 Ill. 2d 612 (2007), in which it considered whether the failure to formally instruct the jury that the State bore the burden of proof as to each and every element of the offense (as part of Illino is Pattern Jury Instructions, Criminal, No. 14.04 (4th ed. 2000) ) rendered the trial fundamentally unfair. The supreme court held that the essential requirements for a fair trial had been met because IPI Criminal 4th No. 2.03 (Supp.2014 IL App (2d) 121203

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- 2009) (which lays out the State’s general burden of proof and the presumption of the defendant’s innocence) had been given

. Green , 225 Ill. 2d at 624 ( “once IPI Criminal 4th No. 2.03 was given, the constitutional threshold was met” )

. A lthough it does not directly bear on the issue of de finining reasonable doubt, Green is illuminating because it reflects Victor ’s emphasis on the constitutional requirement that jurors be told that they must apply the beyond a reasonable doubt standard , and Victor holds th at it is unimportant whe ther “reasonable doubt” is defined so long as the proper standard is applied. ¶ 28 Thus, under Illinois S upreme C ourt precedent, it remai ns the law in Illinois that defining “reasonable doubt” is discouraged but is not reversible error per se . ¶ 29 C

. Turman and Franklin ¶ 30 In 2011, the First District Appellate Court issued Turman , 2011 IL App (1st) 091019, ¶ 19, in which i t held that the trial co urt committed reversible error when it answer ed a jury ’s request for a definition of “reasonable doubt” by saying that “ ‘ reasonable doubt is not defined under Illinois law. It is for the jury to collectively determine what reasonable doubt is. ’ ” The parties had agreed to this response, and the defendant had not identified it as error in his posttrial motion, instead raisi ng it for the first time on appeal. The appellate court stated that the issue was subject to plain error analysis, rejecting the State’s argument that the defendant had acquiesced in the error and could not raise it on appeal. Id

. ¶ 27. ¶ 31 Analyzing the tri al court’s response to the jury’s question, the Turman court held that, although the first part of the response (that the term was not defined under Illinois law) was correct, the second part was error: “By instructing the jurors that they should collectiv ely determine what reasonable doubt was, the court allowed the jury to use a standard that in all likelihood was below the threshold of a reasonable doubt standard. *** The effort by the trial court in this case2014 IL App (2d) 121203

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- can be construed as an attempt to define t hat which the Illinois Supreme Court has said cannot be defined in this way.” Id

. ¶ 25. The Turman court went on to say that the trial court’s response was plain error under both prongs of the analysis. The response was error under the first prong becaus e the cour t viewed the evidence as close, and the response “did not clarify the meaning of reasonable doubt.” Id

. ¶ 27.
It also held that, because the error allow ed the jury to apply an incorrect standard of proof , it affected the fairness and integrity of the trial and violate d the defendant’s right to due process, the reby amount ing to plain error under the second prong

. Id

. ¶ 32 The Turman court did not provide any detailed explan ation as to what aspect of the trial court’s response created the probability that the jury applied a lesser standard of proof. Was it the use of the word “collectively,” which m ight have suggested that reasonable doubt meant whatever a majority of the group thought, without regard for the beliefs of individual jurors? Or was it s imply that the trial court gave some response, and the court read Illinois law as saying that any response (other than refusing to answer the question) was automatic error? The Turman decision left these questions unanswered. ¶ 33 One year later, the Third Dis trict Appellate Court issued Franklin , 2012 IL App (3d)
100618. In Franklin , the trial court had stated, during jury selection : “ ‘ Beyond a reasonable doubt means beyond a reasonable doubt. It’s what each of you individually and collectively, as 12 of yo u, believe is beyond a reasonable doubt. ’ ” Id. ¶ 4. During the State’s rebuttal closing, the prosecutor reminded the jurors that the trial judge had told them that “ ‘ [r] easonable doubt is what you believe to be reasonable doubt. You decide what reason able doubt is. Not [defense counsel], not the State, you decide. ’ ” Id. ¶ 15. The defendant did not make any contemporaneous objections or raise the issue in his posttrial motion, but raised the issue on appeal.2014 IL App (2d) 121203

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- ¶ 34 The majority in Franklin began by stating that “ [t] he United States Constitution does not prohibit courts from defining reasonable doubt” (citing Victor ), but “judges in Illinois courts are prohibited from doing so” (citing Failor and Speight ). Id. ¶ 24. The Franklin majority w ent on to state that any attempt to define “reasonable doubt” was error per se : “A trial court’s attempt to explain reasonable doubt is improper because there is no better definition of reasonable doubt than the words themselves.” Id

. ¶ 25 ; see also id

. ¶ 27 ( the instruction given was improper “because it contravene[d] the Illinois Supreme Court’s mandate that trial courts not define reasonable doubt for the jury”). The Franklin majority then followed Turman in holding that, “by telling jurors that it was for them to collectively determine what reasonable doubt meant,” the trial court’s instruction created a reasonable likelihood that the jury had convicted the defendant based on a standard of proof less than beyond a reasonable doubt, a structural error requiring reversal. Id . ¶ 28. ¶ 35 Justice Carter dissented from this holding . He set out the constitutional requirements for instructing a jury in a criminal trial, including instructions on the presumption of innocence and the State’s burden to prove the co mmission of the offense beyond a reasonable doubt. In particular, he noted the United States Supreme Court’s statement that “ ‘the Constitution neither prohibits trial courts from defining reasonable doubt nor requires t hem to do so ’ ” and “ ‘does not req uire that any particular form of words be used in advising the jury of the government’s burden of proof.’ ” Id

. ¶ 48 (Carter, J., concurring in part and dissenting in part ) (quoting Victor , 511 U.S. at 6 ). Thus, contrary to the majority’s approach :

“ [T] h e United States Supreme Court’s ruling in Victor establishes that a jury instruction defining reasonable doubt is not automatically erroneous, *** and that such an instruction does not automatically violate a defendant’s right to a fair trial as guaranteed by the due process clause. See Victor , 511 U.S. at 5; Green , 225 Ill. 2d at 622 (adopting some of the2014 IL App (2d) 121203

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- language set forth in Victor but in a different context). Indeed, the Supreme Court noted
in Victor that it had only found that a reasonable doubt instruction violated the due process clause one time in the past. See Victor , 511 U.S. at 5. According to the Supreme Court, due process is violated only if under the totality of the circumstances, there is a reasonable likelihood that the jury understood that the instructions allowed it to find the defendant guilty based upon a standard of proof that was less than beyond a reasonable doubt.” Id

. ¶ 36 Justice Carter then reviewed all of the trial court’s extensi ve (and correct) comments to the jury regarding the State’s burden of proof, the presumption of innocence, and the meaning of “reasonable doubt,” as well as all of the prosecutor’s comments (whic h included the statement that beyond a reasonable doubt was t he highest standard of proof available under the law). He concluded that, considering all of the instructions received by the jury, there was not a reasonable likelihood that the jurors believed the trial court’s response allowed them to find the defendan t guilty under a lesser standard of proof. Id . ¶ 49. ¶ 37 D

. Developments Since Turman and Franklin ¶ 38 Less than six months after it decided Franklin , the Third District issued another opinion addressing comments about the meaning of “reasonable doubt.” In Peo ple v. Max , 2012 IL App (3d) 110385, the prosecutor had made two comments about reasonable doubt. During the initial closing argument, the prosecutor acknowledged that the State had the responsibility to prove beyond a reasonable doubt that the defendant engaged in theft and said he thought the jury would find t he State had met this standard . He then said, “ ‘ [n]ow, beyond a reasonable doubt, there’s

— there’s no dictionary definition of that. I would suggest to you that if you imagine a balance

— ’ ” Id

. ¶ 40. Defense counsel objected and the objection was sustained. In the defendant’s closing, her attorney argued that the State had failed to prove that she took any2014 IL App (2d) 121203

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- money, noting that the State had not introduced her financial records or shown that she bo ught expensive items. Id

. ¶ 41. On rebuttal, the prosecutor stated : “ ‘ We all know better in our heart of hearts exactly what went on here. And when you know inside your heart of hearts, you know we have met our burden of proof of proving [the defendant ] guilty beyond a reasonable doubt, and we don’t have to show where she spent the money. ’ ” Id . ¶ 42. ¶ 39 Justice Carter wrote the opinion in Max , joined by two justices who were not on the panel
in Franklin . The opinion reiterated much of Justice Carter’s d issent in Franklin and applied
Victor ’s “totality of the circumstances” test rather than the per se approach of Turman and Franklin . The court then held that, considering all of the information received by the jury in the case, there was not a rea sonable likelihood that the jurors understood the prosecutor’s comments to mean that t hey could find the defendant guilty under a lesser standard than proof beyond a reasonable doubt. Id . ¶ 56. 2 ¶ 40 The First District also appears to have retreated from its position in Turman , to the extent that Turman held that telling jurors that they must define “reasonable doubt” for themselves

2 In People v. Sullivan , 2014 IL App (3d) 12031 2, the Third Di strict (including one of the justic es from the Franklin majority) once again addressed an attempt to define “reasonable doubt.” However, the court simply distinguished Turman and Franklin on the ground that those cases involved comments mad e by the trial judge, whereas Sullivan involved a prosecutorial
comment , which did “not carry as grave a danger of distorting the reasonable doubt standard.” Id

. ¶ 29. The court concluded that the defendant had not shown that the prosecutor’s comment

on the reasonable

- doubt standard was “so egregious that it risked the jury using a lesser standard to convict” the defendant. Id

. ¶ 33.2014 IL App (2d) 121203

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- violates a defendant’s due process rights. In People v. Johnson , 2013 IL App (1st) 111317, the trial court had made the followi ng comments during jury selection:

“ ‘ The State has the burden of proof beyond a reasonable doubt. In Illinois we do
not

— it is not defined by the Supreme Court or by the State legislature. That’s something for you to decide. But if any of you have serv ed on a civil jury, if you use the analogy of a scale, all you have to do is tilt it. And that’s proof beyond a preponderance of the evidence. In a criminal case, if you use the same scale, it’s a balance like this. (Indicating.) Proof beyond a reasona ble doubt is the highest burden that there is at law in Illinois and the United States. ’ ” Id

. ¶ 52. The Johnson court rejected the defendant’s argument that these comments constituted plain error, stating: “Although we do not condone the reference and comparison to the civil standard, we cannot say that the trial court’s comments constitute error, particularly where the court told jurors that reasonable doubt was the highest burden at law and that it was for them to decide what reasonable doubt meant .” (Emphasis added.) Id

. ¶ 54. Johnson did not cite to either Turman or Franklin , however. ¶ 41 In People v. Downs , 2014 IL App (2d) 121156, this court recently addressed the issue of the proper response to juror confusion about the meaning of reasonable doubt. Like the present case, it involved a jury note asking for a definition of reasonable doubt. However, the note in
Downs was more detailed and suggested that the jury fundamentally misunderstood the standard:

“ ‘ What is your definition of reasonable doubt[:] 80%[,] 70%[, or] 60%? ’ ” Id . ¶ 4. The trial court consulted with the parties’ attorneys and eventually responded: “ ‘ We cannot give you a definition *** [;] it is for you to define ***

. ’ ” Id. As here, the defendant did not raise the2014 IL App (2d) 121203

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- correctness of this response before the trial court, and thus on appeal the issue was subject to plain error analysis. ¶ 42 We b egan by noting the firm position of Illinois law that no definition of “reasonable doubt” should be give n and stated that, “[b]ased on this authority, we believe that it is abundantly clear that giving an erroneous definition of ‘reasonable doubt’ qualifies as error.” (Emphasis added.) Id

. ¶ 22. We then considered whethe r the trial court’s response consti tuted an erroneous definition of reasonable doubt

. ¶ 43 Analyzing Turman and Franklin , we summarized the ir holdings as focusing on “ (1) the improper instruction that the jury is to collectively determine the meaning of reasonable doubt, and (2) the danger that the jury will convict a defendant on proof that did not meet the reasonable

- doubt standard.” Id

. ¶ 27. In Downs , the danger that the jury would apply a lesser standard to convict was obvious, in light of the reference in the jury’s question to percentage s as low as 60 percent. “The question, at best, suggests that the jury was predisposed to use a standard less than reasonable doubt, and the trial court, by telling the jury that the court would stay out of it and let the jury do whatever it wanted, only compounded the error.” Id

. ¶ 28. We therefore held that the integrity and fairness of the trial had been impugned, and we reversed the conviction and remanded for a new trial. ¶ 44 Importantly, although in Downs we rejected the State’s request to depart from Turman and Franklin , we noted that, because of the peculiar facts relating to the content of the jury’s note in Downs , we would reverse even if the per se error approach of Turman and Franklin was incorrect:

“ [T] he jury’s question regarding reasonable doub t gives us a concrete and undeniable view into the jury’s thought process regarding reasonable doubt. By asking if reasonable doubt was 80%, 70%, or 60%, the jury clearly showed that it was already contemplating a2014 IL App (2d) 121203

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- standard less than the reasonable

- doubt s tandard required under the law. By instructing the jury that it was ‘your duty to define [the term “reasonable doubt , ”]’ the trial court gave the jury clear license to continue down its mistaken pathway of equating reasonable doubt to some percentage of c onfidence. The State claims that Turman was based on speculation. Even if it were, here we do not have that speculation, because the jury’s question provides insight into the jury’s thinking, and we do not have to speculate that the jury used a lesser st andard. The jury’s question clearly shows that there is a reasonable likelihood that it used a lesser standard in convicting defendant. Because of this difference, we can follow the principles elucidated in Turman even if Turman were wrongly decided ***. ” Id . ¶ 37. ¶ 45 E . Application to This Case ¶ 46 In this case, the trial court initially provided no definition of reasonable doubt to the jury. Thus, it conformed to the dictate of Speight that courts should not attempt to provide such a definition. And, even when the jury asked for the “legal definition” of the term, the trial court simply responded that the definition was for the jurors to determine. ¶ 47 This response was unquestionably correct. As our supreme court has held , neither the court nor counsel shou ld attempt to define reasonable doubt for the jury. Speight , 153 Ill. 2d at
374. As a practical matter, the refusal to supply a definition requires jurors to wrestle with the
term’ s meaning themselves. This is no bad thing: the American legal system is premised on the belief that jurors represent the conscience of the community and will act diligently and though t fully in applying the law. Thus, absent any concrete demonstration of error or confusion, jurors should be trusted to apply the beyond a reasonable doubt standard appropriately. See United States v. Glass , 846 F.2d 386, 387 (7th Cir. 1988) (“ ‘Reasonable doubt’ must speak for itself. Jurors know what is ‘reasonable’ and are quite familiar with the meaning of ‘doubt.’ ”)

.2014 IL App (2d) 121203

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- A tria l court’s instruction that the meaning of “reasonable doubt” is for jurors to determine is a correct statement of Illinois law. ¶ 48 The defendant argues that a trial court’s instruction tell ing jur ors that t hey m ust define reasonable doubt inevitably encourage s them to appl y a standard that is less than proof beyond a reasonable doubt . However, he provides no explanation as to why this should be so , other than citing to Turman and Franklin

. To the extent that Turman and Franklin he ld that simply instructing j urors that they must determine the meaning of “reasonable doubt” is (1) a violation of the Illinois S upreme C ourt’s proscription against providing a definition or (2) reversible error
per se , we find them unpersuasive

. See O’Casek v. Children’s Home & Aid Society of Illinois , 229 Ill. 2d 421 , 440 (2008) (decisions of o n e district of the appellate court are not binding on other districts ). To the extent that th o se two cases rest on some other basis, such as the use of the word “collectively” in the instruc tions in those cases, they are distinguishable from this case

. Either way, the defendant’s reliance on these cases is unavailing

. ¶ 49 Under Victor , we must consider all of the inst ructions received by the jury and determine whether there is a reasonable likel ihood that the jury convicted the defendant under a lesser standard than proof beyond a reasonable doubt. Here, however, the defendant’s sole contention of error is the wording of the trial court’s response to the jury’s second question. We have found th at there was no error in this response. Absent any other evidence that the jury applied a lesser standard than proof beyond a reasonable doubt in convicting the defendant of count I, we cannot conclude that there is a reasonable likelihood that the defend ant’s due process rights were violated by the trial court’s instructions to the jury. Victor , 511 U.S. at 6. ¶ 50 As we find no error in the trial court’s instruction s to the jury in this case, we likewise find no plain error. Naylor , 229 Ill. 2d at 593. Accordingly, the defendant’s forfeit ure must2014 IL App (2d) 121203

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- stand

. People v. Pastorino , 91 Ill. 2d 178, 188 (1982) (“ [ p ] lain error doctrine is a ‘ narrow and limited exception to the general waiver rule” )

. ¶ 51 CONCLUSION ¶ 52 T he judgment of the circuit court of Du Page County is affirmed

. ¶ 53 Affirmed

. ¶ 54 JUSTICE HUDSON, specially concurring: ¶ 55 I agree with the majority that there i s no reasonable likelihood that the jury applied an incorrect standard of proof in the present case. I write separately to caution trial courts against proceeding down a path that is fraught with peril. It is true that a “ trial court has a duty to provide instruction to the jury where it has posed an explicit question or requested clarification on a point of law arising from facts about which the re is doubt or confusion. ” People v. Childs , 159 Ill. 2d 217, 229 (1994)

. On the other hand , “[a] trial court may exercise its discretion and properly decline to answer a jury ’ s inquiries where the instructions are readily understandable and suffic iently explain the relevant law, where further instructions would serve no useful
purpose [,] or would potentially mislead the jury *** .” Id . at 228. As set forth by the majority, precedent of both the United States Supreme Court and our supreme court is abunda ntly clear

— there is no need for a trial court to attempt to define “reasonable doubt” any further than the plain meaning of those two common words conveys. I believe that the better practice is to let the phrase speak for itself. ¶ 56 Indeed, even stating so mething as seemingly innocuous as “it is for you to decide” carries risks. Such an instruction could be read as directing a jury that it must try to define or interpret the objective meaning of the term. On the other hand, it could be read as vesting a j ury with the discretion to interpret the term to mean whatever it wants it to mean (like 80%, 70%, or 60%2014 IL App (2d) 121203

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- certitude , as the question was posed by the jury in Downs , 2014 IL App (2d) 121156). In short, any attempt to interpret, define, or even comment on t he term “reasonable doubt” risks reversal.