## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Anderson , 2012 IL App (1st) 103288

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. MARK ANDERSON, De fenda nt-Appellant.

District & N o. First District, Six th Division Docke t No. 1-10-3288

Filed August 24, 2012

Held (Note : Thi s syl lab us

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

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

o r t h e

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

f t h e

rea der

. ) I n a prosec ution for first degree murder, attempted first degree mur d er and ag g ravated discharg e of a firea rm, the trial court did not err in rea ding the instructions on firea

rm enhanc ements in an order that contra dicted the dir ec t i o n s of the draf

ting committee of the I llinois Pattern J ury Instructions; howeve r, under the “ c lo s e ly b a la n ced evidenc e” prong of the plain-er ror test, defe ndant’s conviction for attempted first degree murder

was rema

nded for a new trial becau s e the jury was instructed that defe ndant could be found g uilty of attempting to murder “an individual” rathe r than the spe cific vic tim.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 0 8 -C R -16890; the Hon. Nicholas F ord, Judge, pr esiding

.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Alison L .S. Shah, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, J anet C. Mahoney
, and Peter Maltese, Assistant State’s Attorney s, of counsel), for the People

.

Panel PRES I DI NG J USTI CE GORDON delivered t h e judgment of the court, with opinion.
J ustice L ampkin concur

red in the judgment and opinion.
J ustice Ga

rcia dissented in part, with opinion.

OP INION

¶ 1 Def

endant Mark Ander son was char g ed by indictment with six counts of the first degree murder of Dar

ryl Har t, two counts of the attempted first deg ree murder of Ozier Hazziez
, and

one count of ag g ravated discharg e of a firea rm for an incident that occur red on J uly 25, 2008. After a jury trial, defe ndant was convicted of all thr ee charg es, as well as two firea rm enhanc ement allegations. On October 8, 2010, the t rial court sentenc ed defenda nt to serve 20 y ear s in the I llinois Depa rtment of Correc tions for the first degree murder conviction, with

a 25-year enhanc emen t fo r t h e d ischarg e of a firea rm. Def endant was also sentenc ed to a

consec utive 6-y ear term in prison for the attempted first deg ree murder conviction, with an enhanc ement of 20 y ear s for the discharg e of a firea rm. Thus, defe ndant’s consec utive terms amounted to a total of 71 year s in the I llinois Depa rtment of Corre ctions. ¶ 2 On this direc t appea l from the judgme nt of the trial court, defe ndant arg ues: (1) that the trial court err ed when it instructed the jury reg arding the firea rm enhanc ements in a manner contra dicting the direc tions of the draf ting committee of the I llinois Pattern J ury Instructions, (2) that defe ndant’s rig ht to have the jury proper ly instru ct ed was violated wher e the instruct io n s f

or attempted first deg ree murder indicated “an individual” rathe r than the victim “Or tier Hazz ier” specific ally
, and (3) that defe ndant i s en t i t l ed to an additional 13 day s of
prese ntence cre dit. ¶ 3 For the following rea sons, we find: (1) t h at the trial court did not err when it failed to instruct the j ury on the firearm enhance ments in the ex act manner dir ec t ed b y t he drafting

comm ittee, (2) that the trial court err ed when it instructed the jury that the subject o f t h e attempted first deg ree murder was “a n individual” rathe r than the vic tim “Or tier Hazz ier,” and (3) that defe ndant is entitled to an additional 13 day s of pre sentenc e cr edit.

-2-¶ 4 BA CKGROUND

¶ 5 I . Evidence at Trial ¶ 6 Ozier Hazziez testified, on behalf of the State, that, on J uly 2 5
, 2 0 0 8
, shortly afte r 2 o’cloc k in the morning
, he went to Orbitz Submarine restaur an t o n 71st Street and Euclid Avenue afte r leaving his job as a hotel convention worke r. Another man, who was not a restaur ant employ ee, was also in the restaur ant, talking on a cellular telephone. This man was l at er i d entified as Dar

ryl Har t. After Hazziez place d his food order
, three males, whom Hazziez did not know, enter ed the restaur ant and place d a food order

. Hazziez descr ibed the three men as a tall, skinny man; a short man; and a chubby man. At trial, Hazziez identified the “tall, skinny man” as defe ndant. L at er , another “older ” man enter ed the store, and Hazziez observe d one of the first three men sell drug s to the older man inside the restaur ant. ¶ 7 Hazziez testified that Ha rt , t h e m an on the cellular telephone, beg an to argue with the three males, stating, “You don’t belong around here

. This is my are a.” Hazziez did not hear a response from the three me n. Hazziez testified that he steppe d outside, remaine d outside for a minute, and when he returne d to the inside of the restaur ant, the men wer e still arguing. Hazziez could not he ar what the men wer e saying, other than the bicker ing about who sold the drug s. Hazziez testified that Har t subs eq u en tly stepped outside the store, followed by Hazziez
, and later the “tall, skinny man,” whom Hazziez identif i ed as defe ndant. Hazziez testified that the “chubby man,” whom he identified as Quentin Cooper, was outside, as well. Hazziez testified t hat Har t and def endant c ontinued to argue outs ide. Hart then s aid, “You might as well shoot me,” and Hazziez observe d defe ndant shoot Har t. Hazziez testified that defe ndant was 5 fee t awa y from Hart when defenda nt shot Har

t and that he (Hazz iez) was 10 fee t away fr o m d efendant when the shots wer e fired. After Har t fell to the g round, Hazziez “took off in [hi s] car ” an d h ea rd three more g unshots. He was not sure in which d i re ction the shots wer e fired. Hazziez testified that defe ndant was wea ring a jacke t, an d Hazziez identified the jacke t in the store video surveillance introduced by the State at trial. He a lso testified that he did not observe a we apon on Ha rt. ¶ 8 Hazziez testified that, af ter the shooting , Hazziez drove f or appr ox imately 20 minutes, then exit ed his vehicle to chec k for bullet holes. He did not find any

. Hazziez subsequently
went to t he police station, talked to the police, and vie wed two photogr aphic arra y s. In the first pho t o grap h i c arr ay , he identified the “short man” from the restaur ant as Centrell J ackson. In the second photogr aphic arr ay , which included photogr aphs of defe ndant, he was initially unable to identify anyone as being prese nt at the restau ra n t

. T h re e wee ks later, Hazziez returne d to the police station an d v i ew ed a phy sical lineup, during which he ident ified defe ndant as the shooter in the J uly 25 incident. At trial, Hazziez identified defe ndant in still photogr aphs obtained f rom the re staurant’ s surveillance video. ¶ 9 Detec tive Sy lvia Vanwitzenburg testified on beha lf of the State that Hazziez identified J ackson as t h e individual with the shooter. She testified that, while viewing the second photogr aphic arr ay at t h e police station (the one in which defe ndant appea red)
, Hazziez stated that one of the individuals “looked familiar,” but he was not “one hundred per cent sure.” Vanwitzenburg testified that Hazziez said that he would be abl e t o i d en t ify the individual if he wer e to see him in person.

-3-¶ 10 The State called Quentin Cooper as a witness. Cooper had known defe ndant for 12 y ear s.

C o oper testified that he was at Orbitz Submarine restaur ant with defe ndant and an o t h er friend, Centrell J ackson, o n J u l y 2 5
, 2008, at around 2 o’cloc k in the morning

. Cooper testified that the three place d an order and sat in the restaur ant, waiting for their food. Cooper

was talking to a “y oung man,” whose name he did not know. Cooper testified that he obtained his food and went outside to his vehicle, wher e he waited for J ackson to rec eive his food. Cooper claimed that “nothing happene d” while he was there

. Cooper testified that he and J ackson left with defe ndant and that he d i d n o t reme mber any ty pe of shooting at the time. Acc ording to Cooper, afte r leaving the restaur ant, his vehicle ran out of g as five blocks from the restaur ant on 71st and Cornell Streets. Cooper testified that he and J ackson walked
to a gas station
, p u rc hased ga s, and walked back to his vehicle. Afterw ards, Cooper drove J ackson home and then drove himself home. Cooper testified that he did not see defe ndant
ag ain that nig ht and did not see him ag ain until three we eks af ter the inc ident. ¶ 11 After Cooper’s testimony
, the State introduced a written statement, signe d by Cooper,

as well as Cooper’s g rand jury testimony as impeaching documents. At trial, Cooper testified that he provided a written statement and g rand jury testimony beca use a detec tive with whom he met on August 13, 2008, forc ed him to. Cooper could not reme mber the name of the detec tive. Cooper cla imed that the detec tive told him that, if he did not sign the paper s, he would be char g ed with the murder of Har t. Cooper testified that he told the assistant State’s Attorney (ASA) and testified at the g rand jury to what the detec tive had coac hed him to say

. At trial, the prose cu t o r re ad Cooper his statement, and Cooper responde d that he did not

rec all ever

y thing in the statement and that he could not rec all any of his g rand jury testimony

. ¶ 12 Cooper testified that he could not rec all whether he had a g un in his vehicle on the nig ht of the incident. He also testified that he did not know whether J ackson had drug s on him that night and that he did not dispose of a g un during the five-bloc k drive. Def ense counsel asked Cooper whether the rea son he said that he had been threatened was beca use he was actua lly the one who had shot and killed Har t. Cooper responde d “no” to this question. The defe nse also asked if the detec tive said he would “put [t he murder] on [C ooper]” beca use he believed that Cooper wa s the shooter, to which Cooper ag ain re sponded “no.” ¶ 13 Chicag o police detec tive Dar ryl Sh aw t es t i fi ed on behalf of the State that in the ea rly morning of August 13, 2008, he int ervie wed Cooper at t he poli ce station. He testified that he asked Cooper to tell him what he knew about the in ci d en t that transpire d at Orbitz Submarine Restaura

nt. Shaw testified that he never coac hed or told Cooper what to tell the assistant State ’s At torney

. He stated that he never threatened to char g e Cooper with the murder of Har

t if he did not testif

y a ce rt ai n way

. He also testified that Cooper was never under a rre st. ¶ 14 An ASA testified on behalf of the State to the statement that Cooper provided him at the police station on August 13, 2008. The ASA testified that Cooper did not tell him that Detec tive Shaw had threatened to char g e Cooper with the murder if Cooper did not make a statement or tell a certain story . Cooper also did not tell the ASA that Shaw told him what
to say or that Shaw had coac hed him. The ASA told Cooper that he would like to write down what C ooper sai d i n h i s statement and that Cooper would be able to revie w t his statement and make any cha n ges , corrections, or additions. Cooper ag ree d. When the ASA finished

-4-h an dwriting the statement, Cooper revie wed eac h pag e, making various chang es an d

corr ections, and the ASA, Detec tive Shaw, and Cooper signe d the bottom of eac h pag e and initialed all the chang es and c orre ctions. ¶ 15 In the handwr itten statement, Cooper stated that, on J uly 25, 2008, he was with de fenda nt and J ackson during the ear ly morning hours, and that around 2 or 3 o’cloc k in the morning
, the three went to Orbitz Submarine restaur ant. At this time, J ackson serve d as a “mac buddy ,” meaning someone who sells drug s to a drug user. Cooper stated that he believed J ackson sold drug s to a d ru g user because he heard a man he knew as “Sizz le” (Hart) make a statement about people “ser

ving” (or selling drug s) outside the restaur ant. Cooper stated that he knew Siz zle from g rade school. Acc ording to Cooper’s statement , Siz zle told J ackson and defe ndant, “Y’ all can’ t be serving up in here

. This ain’t no fre e ent erp ri s e. There ’s a war g oing on.” Cooper stated that he observe d that defe ndant had a g un and stepped b et we en defe ndant and Siz zle. He attempted to c alm the situation by telling the three of them that it “wa s not worth it.” C o o p er stated that he believed that the situation was under control beca use defe ndant walked awa y

. Cooper stated that he walked out of the shop, followed by Siz zle. Cooper st ated that he apologized t o Siz zle for the fac t that J ackson “s erve d” in the shop and that he did not observe any wea pons on Siz zle. Cooper st ated that
, wh i l e he was outside, defe ndant walke d out of the shop with “a look in his e y es that [C ooper] had neve r seen” and noticed that defe ndant had a g un out, pointing downwar d in his rig ht hand. Cooper stated that he stepped betwee n defendant and Siz zle once ag ain, but defe ndant rea ched around him and shot Siz zle. Siz zle fell down with the first sh o t , and defe ndant fired two

mo re t i m es at S izz le. C ooper stated that defe ndant t hen turned around and fired two shots
at another man, who had been in the restaur ant and wh o h ad been standing outside when defe ndant shot Sizz le. Cooper stated that, when defe ndant started to shoot the g un, Cooper
y elled at him to stop. Cooper stated that afte r the shooting, defe ndant tried to enter his vehicle, and Cooper told him, “Ge t the f*** awa y from me. Don’t jump in my car

. Hell no.” Def endant then r an ar ound the cor ner. J ackson then exit ed the restaura nt, and J ackson a

nd Cooper lef

t the scene

. ¶ 16 Another A SA testified on behalf of the State that Cooper

never stated that he had be en threatened by Detec tive Dar ryl Shaw, neither while Cooper was alone with the ASA nor in front of the g rand jury

. The ASA testified that when he asked Cooper whether any body had
t h reatened him or forc ed him to speak to him, Cooper said, “No.” The ASA testifi ed t h at Cooper testified to the same version of events he g ave in his written statement at the g rand jury proce eding s. The ASA testified that Cooper identified his state ment for the g rand jury and testified that no thre ats or promises we re ma de to him when he ma de the state ment. ¶ 17 Centrell J ackson a lso testified on behalf of the State. J ackson identified defe ndant as a
person with whom he went to g rammar and high school. J ackson testified that he was prese nt at Orbitz Submarine restaur ant with Cooper and defe ndant in the ear ly morning hours of J uly 25, 2008. J ackson stated that he did not observe defe ndant shoot Har t. J ackson testified that “he g ot into an alterc ation outside the store with Har t.” J ackson testified that the conflict took place due to J ackson selling two bag s of cra ck coca ine, worth $20, on Har t’s “turf.” J ackson testif i ed that the drug transac tion was conducte d in front of the restaur ant and that the individual to whom J ackson sold the c ocaine did not enter the store . J ackson testified that,

-5-when he enter ed the restaur ant afte r the sale took place
, Har t began to scre am at J ackson. J ackson, Cooper , and def endant a rgued with H art and a man with H art, whom J ackson did
not know. W hile J ackson was at the restaurant counter with defe ndant, defendant gra bbed J ackson’ s food and left the restaur ant. J ackson asked for h i s s o ft d ri n k, and while he was waitingfor it, he hear d three or four shots fired. Jackson testified that, afte r the shots wer e fired, he s tood inside th e s t o re for a few minutes, then walked outside, wher e he observe d Har t lying on the g round. J ackson testified that he did not observe Har t with an y k ind of

wea pon. He testified that Cooper was also o u t s ide, but defe ndant was not. Cooper told J ackson to e nter the ve hicle with him, and the two drove home. ¶ 18 Offic er J anick testified on behalf of the State that, on J uly 25, 2008, he was working with his partne r, Offic er Br

uno, when he was asked to assist with the investiga tion and viewed a surveillance video from the restaur ant. He identified defe ndant and J ackson on the video and
g ave their names to Detec tive Shaw. J anick testified that he encounte red defe ndant, J ackson, and Coo p er o n Au gust 12, 2008, and place d defe ndant in custody and broug ht him to the police station. Def

endant did not re sist arrest. ¶ 19 Fo re nsic scientist Carl Br asic testified on behalf of the State that he investigated t h e crime scene on East 71st Street in the ear ly morning hours of J uly 25, 2008. Whil e sear ching for e vidence of fired bullets, he found one metal fra g ment and five fired c artridg e ca ses on the sidewalk. He collecte d t h e ev i d en ce with g loved hands and place d them in evidenc e envelope s, assig ning inventory number 11370507 to the five fired car tridg e case s, and i n v en t o ry number 11370473 to the metal fra g ment. Additionally
, Br asic testified that he

re cover ed a g ree n and y ellow “Athletics” jacke t, which he rec overe d with g loved h an d s , place d in a paper bag
, and assig ned inventory number 11370508. Br asic testified that he also found a packa g e of cig ars and five loose cig are ttes in the rig ht outside pocket of the jacke t, which he inventoried u n d er number 11370510. At trial, Br asic viewed the evidenc e and stated that eac h item was seale d and in the same condition a s when he orig inally rec overe d it. ¶ 20 For ensic scientist Cy nthia Eng elking Prus testified on behalf of the State that she was a n expert in fing erpr i n t an al y s i s

. She testified that she tested the five car tridg e case s for fing erpr ints and determined that there were no latent i mpressions suitable for comparison. She then tested a matchbook, a packa g e of cig ars, and five cig are ttes. Prus testified that she found a latent print suitable for compar ison on one of the cig are ttes. She compar ed the latent print to an in k ed p alm print car d marke d “Mar k Ander son.” Prus opined, based on a

rea sonable deg ree of scientific cer tain t y , t hat the print on the cig are tte matched the inked print for de fenda

nt. ¶ 21 The parties stipulated that fore nsic scientist Scott Rochowicz of the I llinois State Police

was qualified as an expert in the field of trace ev i d en ce

. I t was stipulated that, if called to testify
, Rochowicz would testify that he tested the Athletics jacke t for g u n re sidue, taking samples from the right and left cuff s. The results indicated that the s ample are as “may not have contacte d a P GSR [prim er g unshot residue] related i tem or m ay not have been in the environment of a

discharg ed fire arm.” ¶ 22 The parties also stipulated that the cause of death of Har t was multipl e g unshot w ounds

-6-and that the manner of death was homicide. The parties also stipulated that the para medics

rec overe d nine clea

r plastic bag s containing coca ine from Har t’s mouth. The parties stipulated to the testimony that the bullets wer e all fired from the same g un and that the
proper chain of custody was maintaine d. ¶ 23 After the State rested, the trial court hear d and denied defe ndant’s motion for a dire cted verdic t. Def

endant informed the trial court that he did not wish to testify
, and the defe nse called no w itnesses or evide nce in de fenda nt’s case -in-chie f. ¶ 24 After closing arguments, the trial court instructed the jury

. The trial court first instructed the ju ry reg arding the first deg ree murder, the attempted first deg ree murder, and the
ag g ravated discharg e of a w eapon c harg es. The c ourt also instructed the jur y reg arding the alleg ations that defe ndant persona lly discharg ed a firea rm that proxi mally cause d death and the alleg ations t h at during the commission of attempted first deg ree murder, defe ndant
persona lly discharg ed a firea rm. Additionally
, the issues instruction provided to the jury for the attempted first degree murder offe nse stated, “A person commits the offe nse of attempt first deg ree murder when he *** with the intent to kill an individual does an act which constitutes a substantial step toward the killing of an individual

. The killing attempted need not have be en ac complished.” (E mphases adde d.) ¶ 25 After retiring
, the jury sent out a question asking for the transcr ipt of the previous day ’s
court hear ing. There wer e no objections, and the trial court sent the transcript to the jury

. The jury then asked if Hazziez testified at the g rand jury and asked for a transcr ipt. The trial court responde d: “ You have hear d the evidenc e in this case , please continue y our deliberations.” The jury was sequestere d overnight and re sumed deliberations the nex t morning. The next morning
, the jury sent out a third note asking
, “Do we vote on one of the four al l egation forms or for eac h alleg ation? ” The court responde d with, “You should sign one verdic t form
as to ea ch alleg ation should y ou rea ch ver dicts.”

¶ 26 I I . Conviction and Sentencing ¶ 27 The jury fo u n d defe ndant g uilty of first deg ree murder, attempted first deg ree murder,

an d ag g ravated discharg e of a firea rm. The jury also found that defe ndant persona lly discharg ed a firea

rm during the commi ssion of the first degree murder offense that cause d death to another person and that defe ndant di schar g ed a firea rm during the commi ssion of the offe nse of attempted first deg ree murder. ¶ 28 On October 8, 2010, afte r heading ag g ravation and mitigation, the trial court sente nced defe ndant to serve 20 y ear s in the I llinois Depa rtment of Correc tions for t h e fi rs t d egree murder conviction, with a 25-y ear enhanc ement for the discharg e of a firea rm. Def endant

was also sentenc ed to a consec utive 6-year term in prison for the attempted first d egree murder conviction, with an en h an ceme nt of 20 y ear s for the discharg e of a firea rm. Thus, defe ndant’s consec utive terms amounted to a total of 71 year s in the I llinois Depa rtment of Correc tions. The trial court g ave defe n dant cre dit for 774 day s serve d in prese ntence custody

. On Octobe r 28, 2010, def endant f iled a notice of

appea l, and this appea l followed.

-7-¶ 29 ANALYSI S

¶ 30 There are three main issues on this dire ct appea l: ( 1) whether the trial court err ed when it instructed the jury reg ar d i n g t h e firea rm enhanc ements in a manner contra dicting the direc tives of the d rafting committee of the I llinois Pattern J ury Instructions, Criminal, (2) whether defe ndant’s rig ht to have the jury proper ly instructed about the charg ed offe nses was violated wher e the instructions for attempted first deg ree murder indicated “an individual” rathe r than the victim “Ozier Hazzier,” and (3) whether defe ndant is entitled to an additional 13 day s of pre sentenc e cr edit for time ser ved. ¶ 31 For the fol l owing rea sons, we find: (1) that the trial court did not err when it failed to inst ru ct t h e j ury on the firearm enhance ments in the ex act manner directed by the drafting committee of the I llinois Pattern J ury Instructions, Criminal, (2) that the trial court err ed when i t i n s t ru ct ed the jury that the subject of the attempted first deg ree murder was “an individual” rathe r than the vic tim, “Ozier Hazzier,” and (3) that defe ndant is entitled to an additional 13 day s of pre sentenc e cr edit for time conside red se rved.

¶ 32 I . Standard of Re view ¶ 33 A revie wing court will g ener ally revie w jury instructions only for an abuse of discretion. The decision whether or not to g ive the instruction is within the sound discretion of the trial court; howeve r, there must be evidenc e in the rec ord to justify g iving a particula r instruction. People v. Hammonds , 409 I ll. App. 3d 838, 849 (2011). Abuse of di scre tion will be found wher e no rea sonable perso n co u l d ag ree with the position of the lower court. Matthews v. Avalon Petroleum Co. , 375 I ll. App. 3d 1, 9 (2007). ¶ 34 Although jury instructions are g ener ally revie wed for an abuse of discretion, our standard of revie w is de novo when the question is whether t he applicable law was acc urate ly explained to the jury

. People v. Hammonds
, 409 I ll. App. 3d 838, 849 (2011) (quoting Barth

v. State Farm Fire & Casualty Co.
, 228 I ll. 2d 163,170 (2008))

. Under the de novo standard of revie w, the revie wing court does not need to defe r to the trial court’s judgme nt or

rea soning. People v. Vincent
, 226 I ll. 2d 1, 14 (20 0 7 ). De novo revie w is completely i n d ependent of the trial court’s decision. United States Steel Corp. v. Illinois Pollution Control Board , 384 I ll. App. 3d 457, 461 (2008). ¶ 35 Finally
, whether a mi ttimus should be correc ted is a question of law and will there fore also be revie wed de novo

. P eople v. Kruger
, 175 I ll. 2d 60, 64 (1996). Be cause sentenc e

cre dit for time serve d is mandat o ry , s u ch a claim of err or cannot be waived ( People v. W hitmore
, 313 I ll. App. 3d 117, 121 (2000))
, and an amende d or corr ecte d mitti mus may be issued at any

time ( People v . Quintana , 332 I ll. App. 3d 96, 110 (2002)).

¶ 36 I I . J ury Instruction ¶ 37 A. Fir ear m Instruction ¶ 38 Def

endant a rgues that, ac cordingto the I llinois Pattern Jury Instructions, Criminal, the firea rm enhanc ement jury instructions should have been intersper sed throug hout the rea ding of the instructions, following “immediately afte r” the applicable 2.01 series, No. 2.03 series,

-8-No. 26.03, and the issues instruction for the offe nse to which eac h enhanc ement applied.

I llinois Pattern J ury Instructions, Criminal, No. 28.01, Commi ttee Note (4th ed. Supp. 2009) (her einaf ter , I P I Criminal 4th No. 28.01 (Supp. 2009)); I llinois Pattern J ury Instructions, Criminal, No. 28.02, Commi ttee Note (4th ed. Supp. 2009) (her einaf ter, I PI Criminal 4th No. 28.02 (Supp. 2009)); I llinois Pattern J ury Instructions, Criminal, No. 28.03, Commi ttee Note (4th ed. Supp. 2009) (her einaf ter, I PI Criminal 4th No. 28.03 (Supp. 2009)); I llinois Pattern J ury Instructions, Criminal, No. 28.04, Commi ttee Note (4th ed. S upp. 2009) (hereina fter, I PI Criminal 4th No. 28.04 (Supp. 2009)). T h e i n i t i al, unitary instructions of the enhanc ements should follow “immediately afte r the applicable 2.01 series instruction.” I PI Criminal 4th No. 28.01, Commi ttee Note (Supp. 2009). Additionally the issues instruction for the enhanc ements should follow “immediately afte r the issues instruction for the offe nse to which the enhanc ement/extended term fac tor applies.” I PI Criminal 4t h No. 28.03, Commi ttee Note (Supp. 2009). Finally
, the concluding instruction reg arding the enhanc ements should be g iven “immediately afte r the a

pplicable 26.01 series instruc tion.” I PICriminal 4th No. 28.04, Com mittee Note (Supp. 2009). ¶ 39 In the case at bar, the tri al co u rt d i d n o t p ro v ide the rele vant firea rm enha nceme nt instructions immediately afte r the 2.01 series, 2.03 series, 26.01 series, o r the issues instructions for the offe nse to which the enhanc ements applied. The trial court first rea d the ju r y instructions reg arding first deg ree murder, attempted first deg ree murd e r , a n d a g gr a v a te d discharg e of a wea

pon, in addition to the ge nera l instructions. Af ter rea ding the six verdic t forms for first deg ree murder, attempted first deg ree murder, and ag g ravated discharg e of a

wea pon, the trial court then rea d the jury instructions for the firea rm enhanc ements and the verdic t forms for the enhancemen t ch ar ges

. There fore
, the m anner in which the trial court judge instructed the j u ry contra dicted the draf ting committee’s direc tives. The issue is whether it was an a ccur ate r ecitation of the law and whether it confused the jur

y

. ¶ 40 J u ry i nstructions are intended to convey to the jury the co rr ec t p ri n ci p l es o f l aw applicable to the evidenc e submitt ed so that the jury can “ar rive at a corr ect conc l u s i o n

acc ording to the law and the evidenc e.” People v. Pinkney
, 322 I ll. App. 3d 707, 717 (2000). “Jury instructions should not be misleading or confusing .” Pinkney
, 322 I ll. App. 3d at 717. I llinois courts have acknow ledg ed that “while committee comments are not the law, the trial
court is allowed to deviate from the sug g ested instruction and format only wher e nece ssary to confor m to unusual fac ts or new law.” People v. Banks
, 287 I ll. App. 3d 273, 280 (1997). “I llinois pattern instructions have been painstaking ly draf ted” and “[t] rial judge s should not take it upon themselves to second- g uess the draf ting com m i t t ee wh ere the instruction in question clea

rly applies.” (Interna l quotation marks omitted.) People v. Durr
, 215 I ll. 2d 283, 301 (2005). When an I PI criminal instruction does not acc urate ly state the law with respe ct to a particula

r subject, the trial court may , in its discretion, g ive a non-I PI instruction on the subject. People v. Bush
, 157 I ll. 2d 248, 253 (1993). Howeve r, “Supreme Court Rule 451(a) require s that in a criminal case , if the court deter mi n es t h e jury should be instructed on a subject, and the I llinois Pattern J u ry Instruction (I PI ), Criminal, contains an applicable instruction, then the I PIinstruction ‘shall’ be g iven unl ess t he court determines it does not

acc urate ly

state the law .” People v . Hopp , 209 I ll. 2d 1, 7 (2004). ¶ 41 T h e trial court g ave the applicable I PI jury instructions, but defe ndant ar gu es t h at b y

-9-instructing the jury in a manner co n t ra ry to the draf ting committee’s sug g estions, the trial
court violated defe ndant’s rig ht to a fair trial by causing juror confusion. Def endant claims that the notes sent by the jurors to the trial court during thei r d eliberation evidenc ed this confusion. Defenda n t ref

ers specifica lly to the not e that asked the trial court, “Do we vote

on one of the four alleg ation forms or for eac h alleg ation? ” Def end an t ar g ues that this confusion could have been avoided if the trial court had read t h e firea rm enhanc ement instructions in it s proper

order

. ¶ 42 The State argues that defe ndant has forf eited both of the issues argued by defe ndant: (1) that the manner in which the firea rm in s t ru ct i ons wer e rea d was flawe d and (2) that the attempted first deg ree murder instructio n wa s fl awe d in failing to specific ally name the victim of the char g e, by raising these issues for the first time on appea l. The State notes that defe nse counsel rec eived a copy of the instructions that the State wa s p ro posing and that defe nse counsel stated that he did not wish to add any additional instructio n s

. De fense counsel also did not raise any objections to the proposed instruction, other than t o I llinois Pattern J ury Instructions, Criminal, No. 3.02 (2d ed. 1981), which explained circ umstantial evidenc e, and did not object to the order in which the trial court rea d the instructions. Def endant filed a posttrial motion for a new trial, which did not i n cl u d e any claim of improper jury instructions or the order in which the instructions wer e rea d. The State argues that, there fore
, under I llinois Supreme Court Rule 451 (ef f. J uly 1, 2006), defe ndant forf eited his right to obtain re view of a ny jury instruction error , if there was one

. ¶ 43 Our s up re m e co u rt has found that a defe ndant will be considere d to have forf eited his rig ht for revie w of a jury instruction err or if he failed to object to the instruction at trial and did not raise the issue in a posttrial motion. People v. S a r g en t , 2 39 I ll. 2d 166, 188-89 (2010). Althoug h trial counsel f ailed to object to the manne r in which the jury instructions

wer e to be rea d at the instructions c onfer ence and also failed to inc lude the alleg ed err or in his posttrial motion, I llinois Supreme Court Rule 451(c) (ef f. J uly 1, 2006), states that substantial defe cts in criminal j u ry instruction “ar e not waived by failure to make timely objections there to if the i ntere sts of j ustice require.” This rule is meant to co rr ec t g rave or serious err ors and err ors in case s so fac tually close that fundame ntal fairne ss require s that the jury be proper ly instructed. People v. Sargent
, 2 39 I ll. 2d 166, 189 (2010). The rule is coextensive with the plain-er ror clause of Supreme Court Rule 615(a)
, which provid es: “ ‘Any err or, defe ct, irregularity
, or varia nce which does not aff

ect substantial rig hts shall be disreg arde d. Plain err ors or defe cts aff ecting substantial rights may be noticed althoug h they

wer e not broug ht to the attention of the trial court.’ ” Sargent
, 239 I ll. 2d at 189 (quoting I ll. S. Ct . R. 615(a))

. ¶ 44 The plain-er

ror doctrine allows a revie wing court to consider an unprese rved err or whe n (1) a clea r or obvious err o r o cc u rr ed and the evidence is so closely balanc ed that the error alone threatened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or ( 2) a c lear or obvious err or occ urre d and that err or is so serious
t hat it aff ecte d the fairne ss of defe ndant’s trial and challeng ed the integ rity of the judic i al
proce ss, reg ardle ss of the closene ss o f t h e evidenc e. Sargent
, 239 I ll. 2d at 189; People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007). Def endant bear s the burden of persua sion reg arding whether the evidenc e was closely balanc ed or whether the err or was so serious that it aff ecte d

-10-the fairne ss of his trial and challeng ed the integ rity of the judicial proce ss. People v. Herron
,

215 I ll. 2d 167, 178 (2005). In I llinois
, the “close ly balanc ed evidenc e” pr ongof the plainerr or rule defe nds ag ainst err ors that could lead t o t h e conviction of an innocent person ( People v. Mullen
, 141 I ll. 2d 394, 402 (1990))
, while the “substantial rig hts” prong defe nds
ag ainst err ors t hat e ro d e the integ rity of t he judi cial process and undermine the fairne ss of the def endant’ s trial (

People v . Keene , 169 I ll. 2d 1, 17 (1995)). ¶ 45 In order for there to be plain err or, we must first find err or. Piatkowski
, 225 I ll. 2d at 565. In the case at bar, we find that there was no err or reg arding the order in which the jury instructions wer e rea d. As stated above, jury instructions are intended to c onvey to the jury the corr ect principles of law applicable to the evidenc e submitt ed so that the jury can “ar rive
at a corr ect conclusion acc ording to the l aw and the evidence.” Peopl e v. Pinkney
, 322 I ll. App. 3d 707, 717 (2000). Although the instructions w ere not r ead to the jury in the prec ise order direc ted by the draf

ting committee, the trial court clea rly conveyed the applicable law and the proper instructions to the jury

. LaSalle Bank, N.A. v. C/HCA Dev elopment Corp.
, 384 I ll. App. 3d 806, 818 (2008) (f i nding that a jury instruction that deviated from committee direc tives did not prejudice defe ndants beca use the instruction w a s s till an acc urate statement of t he app l i ca b l e law). Even when a trial court gives faulty instructions, a reviewing court will not revie w a trial court’s decision unless the instruction clea rly mis l ed t h e jury and resulted in prejudice to the defe ndant. Schultz v. Northeast Illinois Regional Commuter R.R. Corp. , 201 I ll. 2d 260, 273 (2002). ¶ 46 The jury note which asked the trial court whether the jury was to vote on one or eac h of the four alleg ations does not de monstrate that the jury was misled or confuse d by the order in which the i n s t ru ct ions wer e rea d, which there fore cause d it to arr ive at an incorre ct

co n cl u sion. Ba sed on the evidenc e prese nted, the jury found defe ndant g uilty of the fi rs t deg ree murder of Har

t and that defe nd an t d i s ch arg ed a firea rm in the commission of that murder. We will not overturn defe ndant’s g uilty verdic t based on a technica lity when the jury

was incontestably provided with the ap p l i cable and corr ect law and jury instructions. There fore
, we do not find that the trial court err ed in deviating from the firea rm enhanc ement direc tives provided by

the dra fting committee. ¶ 47 The job of draf ting pattern jury instructions and the order in which they are to be rea d to the jury was not g iven to the trial courts or the appellate courts. Our I llinois Supreme Court
g ave that job to a committee on pattern jury instructions and require s its lower courts to follow the direc tives of the committee, unless the committee faile d t o state the law

acc urate ly

. LaSalle , 384 I ll. App. 3d at 818. ¶ 48 E v en i f we we re to find err or in the order in which the trial court rea d t h e j u ry instructions, this err or would not rise to the level o f p l ai n er ror under either the “close ly balanc ed evide nce” test or the “substantial r ights” test of the plain-e rror analy sis. ¶ 49 R ega rd i ng the “close ly balanc ed evidenc e” test, in People v. Herron
, 215 I ll. 2d 1 6 7 (2005), our supreme court aff irmed t h e ap p el l ate court’s finding of plain err or based on closely balanc ed evidenc e. In that case , the State’s case was based al m o s t s o lely on the testimony of witness Comanse and his identification of defe nda nt. I n h is testimony
, Comanse descr ibed defe ndant, whom he had never seen befor e, as 5 fee t 10 or 11 inches tall and stated

-11-that he viewed the man’s fac e for approximately 20 to 25 seconds befor e he complied with

defe ndant’s dema

nd to lie fac edown on the floor. Comanse viewed a photo lineup that day but did not identify anyo n e. S ix teen months later, Comanse identified defe ndant from a lineup. Comanse’s descr iption of the man who held a g un to him conflicte d with the acc ount of another witness, who testified that the man was shorter than her and was “proba bly ” 5 fee t 5 inches tall. Def

endant was 5 fee t 11 inches tall. Although this witness observe d both men enter the lobby and approa ch the front desk and also aided the shorter man in opening the cash draw er to take the money , she never identified defe ndant. Additionally
, the State’s other three ey ewitnesses c ould not identify defe ndant. Herron , 215 I ll. 2d at 173-74. ¶ 50 Simi larly
, in People v. Piatkowski
, 225 I ll. 2d 551 (2007), our supreme court found that the evidenc e was closely balanc ed. In that case , the State prese nted no phy sical evidenc e to

connec t defe ndant to the shooting, and no incul p at o ry s tatements by defe ndant wer e admitted. The only evidenc e linking defe ndant to the crime was the sketchy testimony of two ey ewitnesses, and the erro neous j ury instruction in the case related specifically to how t he jury would asses the reliability of ey ewitnesses’ testimony cause d the supreme court to order

a new trial. Piatkowski , 225 I ll. 2d at 567-68. ¶ 51 The fac ts of the case at bar are distinguishable fr o m He r r o n and Piatkowski . Hazziez
, Cooper, and J ackson all place d defe ndant at the scene of the crime in the ear ly morning hours of J uly 25, 2008. Cooper and J ackson both knew defe ndant prior to th e i n cident, Cooper having known defe ndant for 12 y ear s and J ackson having known defe ndant since g rammar school. Unlike in the afor ementioned case s, there w as phy sical evidenc e linking defe ndant
to the shooting, specific all y the Athletics jacke t, which defe ndant was observe d wea ring both by Haz z i ez an d in the restaur ant’s surveillance video, and the cig are tte, which had fing erpr ints that matched those of defe ndant. Hazziez and Cooper both stated that they observe d defe ndant eng ag e in an argument with Har t, display a g un, and shoot Har t. Hazziez
, Cooper, and J ackson eac h stated that they did not observe a wea pon o n Har

t. There is no evidenc e that any other individual at the scene of the crime had a wea pon. The shell casing and fired bullet jacke ts that wer e rec overe d from the crime scene and tested verifie d that only

one g un was utiliz ed that night. Addi tionally
, Hazziez testified that he stood 10 fee t awa y from defenda

nt at t h e t i m e wh en defe ndant s hot Har t and that he had previously observe d defe ndant’s appea

ranc e while inside the restaur ant. Even though he could not ident i fy defe ndant with cer

tainty in the photogr aphic arr ay on the night of the incident, Hazziez stated that he would re cog nize the shooter if he w ere to see him in person, a nd he later

identified defe ndant at trial and in a pretria l lineup at the police station, which took place three wee ks afte r the incident. The fac t that Cooper rec anted his written st at em en t and g rand jury testimony does not, in itself, rende r the evidenc e closely balanc ed. People v. Fields
, 285 I ll. App. 3d 1020, 1030-31 (1996) (the defe ndant’s conviction upheld wher e the only witnesses placing the defe ndant at the scene disclaimed their previous statements at trial). There fore
, we do not find the e vidence in this case to be c losely balanc ed. ¶ 52 Additionally
, we d o n o t fi n d d efendant’s plain-er ror argument under the “substantial rig hts” test to be persua sive. The fac t that the trial court did not rea d the jury instructions in the prec ise order direc ted by the draf ting committee of the I llinois Pattern J ury Instructions, Criminal, was not an err or so seriou s t h at i t aff ecte d the fairne ss of defe ndant’s trial,

-12-particula rly since the trial court clea rly conveyed the applicable law and the proper instructions to the jury

. Moreove r, this deviation from the direc tives of the d ra fting committee is not so g rave as to threaten the integ rity of the judicial proce ss. Herron
, 215 I ll. 2d at 178. There fore
, even if this court wer e to find err or in the trial court’s order of rea ding the jury instructions in thi s case , that err or would not rise to the leve l of plain err or. ¶ 53 Alternatively
, defe ndant argues that defe nse counsel’s failure to pr eser ve this e rror in a posttrial motion demonstrates that his counsel was ineffe ctive. People v. Eddmonds
, 101 I ll. 2d 44, 65-66 (1 9 8 4 ). A d efendant has a constitutional rig ht to the eff ective assistance of counsel. Strickland v. W

ashington
, 466 U. S

. 6 6 8
, 685-86 (1984); People v. Albanese
, 104 I ll. 2d 504, 525-26 (1984); see also U.S. Const., amends. VI
, XIV; I ll. Const. 1970, art. I
, § 8. Counsel provides ineffe ctive assistance wher e (1) counsel’s decisions wer e objectively

unrea sonable and (2) a reas o n ab l e probability exis ts that but for counsel’s defic ient perf ormanc e, the outcome of the trial would have been differ ent. Strickland
, 466 U.S. at 687- 89; Albanese
, 104 I ll. 2d at 525-26. Def endant argues t hat i t was objectively unrea sonable for counsel to f

ail (1) to obje ct to the trial court’ s failure to r ead the jury instructions in the order direc ted by the d raf ting committee or (2) to include the err or in a posttrial motion. Def endant also argues that he suffe red prejudice due to the fac t that this issue was not fully
prese rved. P eo

p l e v. Enoch
, 122 I ll. 2d 176, 186 (1988). We find this argument to be
unper s uasive. Given that the deviation from the draf ting committee’s direc tives reg arding the order of the instructions was not err oneous, it was not objectively unrea s o n able for defe nse counsel to fail to addre ss this issue throug h objection or a posttrial motion. Moreove r, there is not a rea sonable probability that the outcome of the trial would have been differ ent had the instructions been rea d in the direc ted order

. Thus, we cannot find ineffe ctive assistance of counse l in this case

. ¶ 54 There fore , we a ffirm de fenda nt’s first deg ree murder and related firearm e nhance ment convictions and sente nces.

¶ 55 B. Attempted First De g ree Murder Instruction ¶ 56 Secondly
, defe ndan t ar gu es t h at t h e j u ry was improperly instructed reg ardingthe attempted first degree murder offe nse. Def endant was char g ed with the first deg ree murder of Dar ryl Har t and the attempted first deg ree murder Ozier Hazziez

. The jury was instructed that it could find defe ndant g uilty of attempting to murder “a n i n d i v i du al,” as opposed to specific ally the victim Ozier Hazziez

. Def endant argues that based on the pro v i d ed instructions, the jurors could have conclude d that defe ndant wa s gu i l t y of the attempted murder of Har t, rather than of Ha zz iez. ¶ 57 “ ‘T h e s o l e fu n ction of instructions is to convey to the minds of the jury the cor rec t prin ci p l es of l aw applicable to the evidence submi tted to it in order that *** the j ury may , by the application of proper leg al principles, arr ive at a corr ect conclusion acc ording to the law and the evidenc e.’ ” People v. Ramey
, 151 I ll. 2d 498, 5 3 5 (1 9 92) (quoting People v. Gambony
, 402 I ll. 74, 81 -8 2 (1 9 48)). J ury instructions should not be misleading or confusing
, and th e ir c o r

r e c tn e ss depends on whether “ordina ry persons acting as jurors would fail to understa

nd them.” People v . Herron , 215 I ll. 2d 167, 187-88 (2005). In such a case,

-13-a def endant must show that the claimed instruc tional error “ ‘c reates a ser ious risk that the jurors incorre ctly conv i ct ed the defe ndant beca use they did not understand the applicable law, so as to sever ely threaten the fairne ss of the trial.’ ” People v. Durr
, 215 I ll. 2d 283, 299 (2005) ( quoting People v . Hopp , 209 I ll. 2d 1, 8 (2004)). ¶ 58 In the case at bar, the issues instruction for attempted first deg ree murder provided to the jury stated:
“To sustain the char g e of attemp t ed fi rs t deg ree murder, the State must prove the following propositions: First: That the defe ndant or one for whose conduct he is leg ally responsible, perf

ormed an act which constituted a substantial ste p toward the killing of

an individual; an d
, second: That the defe ndant, or one for whose conduct he is leg ally responsible, did so with the intent to kill an indivi dual. A per son commits the offe nse of attempt first deg ree murder w hen he *** w ith the intent to kill an individual does an act which constitutes a sub s t an t ial step toward the killing of a

n individual. The killing attempted ne ed not have been a ccomplished.” ¶ 59 De fe n d an t argues t hat, based on the pl ain and ordinary meaning of t he ins truction, t h e jury could have rende red a g uilty verdic t for the attempted first deg ree murder by finding that defe ndant attempted to murder any “individual,” including Har t. Def endant notes that the trial court did not clar ify to the jury that the attempted f

irst deg ree murder of

fense ref err ed only to Hazzi ez. ¶ 60 Un d er I l l inois Supreme Court Rule 451(c) (ef f. J uly 1, 2006), where a jury instruction suffe rs from a substantial de fec t, claims of err or are not subje ct to f orfe iture on appea l. An

err oneous inst ru ct i on constitutes a substantial defe ct, or plain err or, when the flawe d instruction cre ated a serious ri s k t h at the defe ndant was incorre ctly convicted beca use the jury did not understand the applicable law, so as to threaten the fundame ntal fairne ss of defe ndant’s trial. People v. Durr
, 215 I ll. 2d 283, 299 (2005) (quoting People v. Hopp
, 209 I ll. 2d 1, 8 (2004))

. A defe ndant does not need to prove that the err or i n t h e i n s t ru ct ion
actua lly misled the jury

. People v. Herron
, 215 I ll. 2d 167, 193 (2005). “When there is err or in a close case , we choose to err on the side of fairne ss, so as not to conv i ct an i n n o ce nt person.” Herron
, 215 I ll. 2d at 193. As stated previously
, p lain err or arises in two circ umstances: (1) when the flawe d instruction was provided in a case wher e the evidenc e was closely balanc ed or (2) when t he fla w in the instruction is “g rave ” or so se rious that it denied the defe ndant a substantial rig ht and undermined the integ rity of the judicial proce ss. Herron , 215 I ll. 2d 178-79. ¶ 61 Although the jury inst ru ct i o ns provided here wer e taken from the I llinois Pattern Jury Instru ct i o n s , Criminal, it is probable that the “ordina ry person” in the jury would not understand that the subject of the attempted first deg ree murder char g e was only Ha z z iez. I llinois courts have acknow ledg ed that the trial court may deviate from the sug g ested I PI instruction in order to confor m to the fac ts of the case

. People v. Banks
, 287 I ll. App. 3d 273, 280 (1997). In this case , the trial court only neede d to clar ify in the instructio n s t h at the “individual” ref

erred t o i n the attempted murder charg e was specific ally Hazziez to avoid potential juror conf

usion reg ardingthe murder ’s victim, Hart. ¶ 62 At the beg inning of the trial, the court rea d to the jury the char g es of indictment, which

-14-stated, “It will be asser ted that *** [defendant] committed the offe nse of attempted firstdeg ree murder in that *** [defendant] sho t at Oz ier [ Hazziez ] while armed with a firear m ***.” The State also informed the jury at the conclusion of the trial du ri n g i t s cl osing
argument that the subject of the attempted first deg ree murder char g e was Hazziez

. Howeve r, the jury was instruct ed b ef o re deliberation that the indictment and the closing arguments

wer e not to be conside red a s evidenc e ag ainst defe ndant. ¶ 63 The S tate cites People v

. Steve nson , 198 I ll. App. 3d 376, 381-82 (1990), in which the appellate co u rt found that the State’s opening statement and the defe ndant’s closing
argument wer e sufficie nt to overc ome any ambig uity of the issues of d ef endant’ s mental state, which was alleg edly cause d by the jury instruction. People v. Steve nson , 198 I ll. App. 3d 376, 381-82 (1990). Howeve r, Steve nson is disti ng uishable fr om this case. The issue in Steve nson was whe ther the jury could find the de fenda

nt guilty of attempted murde r base d

on either intent to kill or i ntent to do g rea t bodily harm. The court in Steve nson found t hat wher e the evidenc e was not close and wh er e b o t h the prosec utor and defe nse counsel addre ssed the require d intent to kill, there was no reve rsible err or. In the case at bar, defe nse counsel never discussed to whom the attempted murder instruction applied, and we find that the few comments made by the prosec utor relating to the issue did n o t clar ify that the attempted murder offe nse ref err ed only to Hazziez
, particula rly when the jury was instructed that those comments wer e not to be conside red a s evidenc e. ¶ 64 There fore
, we find that the confusing nature of the jury i n s t ru ct i o n , wh i ch failed to specify that the subject of the attempted murd er ch arg e was only Hazziez
, rende red the instruction err oneous under the n arr ow set of fac ts of this case

. We must now deter mine whether (1) the evidenc e is so closely balanc ed that the err or alone threa tened to tip the scale s of justice ag ainst the defe nd an t o r (2 ) that the err or is so serious that it aff ecte d the fairne ss of defe ndant’s trial and challeng ed the integ rity of the judicial proce ss. Sargent
, 239 I ll. 2d at 189. ¶ 65 We find that t h e evidenc e reg arding the attempted first deg ree murder of Hazziez was closely bala n ced. The only evidenc e prese nted by the State reg arding the attempted first deg ree murder offe nse was the statements and testimony of Hazziez and Cooper. Hazziez testified that he observe d defe ndant shoot Har t and that he hear d more shots afte r the shooting; howeve r, he stated that he did not know the direc tion in which they wer e fired as he ran to his vehicle, jumped inside, and left the scene

. He did not observe defe ndant shoot him. Hazziez also testified that he did not find any bullet holes in his v eh i cl e. In his handwr itten statement and g rand jury testimony
, Cooper stated that defe ndant turned around and shot at “anothe r person” afte r shooting Har t; howeve r, there is n o ev idence which demonstrates that this “other per son” wa s Hazzi ez. Moreover , Cooper wa s asked at trial if he told the ASA that defe ndant “starte d firing at another g uy ,” and Cooper stated that he had
not made that statement. The fac t that Cooper later rec anted his written statement and g rand jury testimony also aff

ecte d his reliability as a witness and contributed to the evidenc e being closely balanc ed. ¶ 66 Under the “close ly balanc ed evidenc e” prong , a defe ndant mus t s h o w t h at the ver dict “may have resulted from the err or and not the evidenc e.” (Interna l quotation marks omitted.) People v. W

h ite
, 2011 I L 109689, ¶ 133. In this case , the evidenc e reg arding whether

-15-defe ndant fired the gun i n the di rec tion of Hazz i ez wa s closely balanc ed. The fac t that the

jury instructions did not specify that Hazziez was the subject of the attempted murder char g e may have allowed the jury to convict defenda nt of attempted first deg ree murder based on the flawe d instruction rathe r than t h e ev i dence

. Namely
, the jury could have found that defe ndant attempted to kill, and then succe eded in killing, Har t. This potential confusion was demonstrated in the three notes rele ased by the j u ry , two of which involved the attempted first degree murder char g e. One asked for a transcr ipt of the previous day ’s hear ing, during which Hazziez and Cooper testified. The second asked if Hazziez testified at the g rand jury and, if so, whe ther the jury could be g iven a tra nscript of the te stimony . Thus, we f ind that defe ndant satisfied the “ closely balanc ed evide nce” prongof the plain-e rror test. ¶ 67 There fore
, we find that the t rial cour t erre d in failing to specify in the j ury instructions that the subject of the attempted murder char g e was only Hazziez

. As a re s u l t , t his cause must be reve rsed and rema nded to the trial court for a new trial on the attempted murder char g es.

¶ 68 I I I . Presentenc e Credit ¶ 69 Finally
, the trial cour t awar ded def

endant 774 da

y s of pre sentenc e cr edit; however , the

rec ord indicates that defe ndant spent 787 day s in pretria l custody

. A defe ndant is entitled to

cre dit for any part of any day that he spends in custody

. 730 I L CS 5/5-4.5-100 (West 2008); People v. Bussan
, 306 I ll. App. 3d 836, 840 (1999). The State does not have an objection to the defe ndant’s mitti mus being corr ecte d to ref lect a p rese ntence cre dit of 787 day s. There fore
, we order the cler k of the circ uit court to corr ect defe ndant’s mitti mus to 787 day s of cre dit. I ll. S. Ct. R. 615(b)( 1); People v. Alvarez-G arcia
, 395 I ll. App. 3d 719, 734 (2009).

¶ 70 CONCLUSI ON ¶ 71 For the fore g oing rea sons, we find: (1) t h at the trial court did not err when it failed to instruct the jury on the firea rm enhanc ements in the order direc ted by the draf ting committee of the I llinois Pattern J ury In s t ru ct i ons, Criminal, (2) that the trial court err ed when it instructed the jury that the subject of the attempted first deg ree murder was “an individual”

ra t h er than “Ozier Hazzier,” and (3) that defe ndant is entitled to an additional 13 d ay s o f
prese ntence cre dit.

¶ 72 Affir

med in part a

nd reve rsed in par

t; cause r emande d.

¶ 73 J USTI CE GARCI A, dissenting in pa rt. ¶ 74 I ag ree wi t h the majority that plain err or occur red when the jury was instructed that to find the defe ndant g uilty of attempted first deg ree murder, it need only find that the offe nse

was committed ag ainst “an individual.” Supra ¶¶ 64-65. I dissent beca use the evidenc e as to the victim of the attempt ed m u rd er char g e was so lacking that a retria l of the defe ndant would violate his c onstitut ional right ag ainst double jeopar dy

. See People v. Taylor
, 76 I ll. 2d 289, 309 (1979) (“ ‘The Double J eopar dy Clause forbids a second trial for the purpose of

-16-aff ording the prosecution another opportunity to supply evidenc e which it fa iled to muster in the first proce eding .’ ” ( quoting Burks v. U nited States , 437 U.S. 1, 11 (1978)))

. ¶ 75 As the majority states, “The only evidenc e prese nted by the State reg arding the attempted first deg ree murder offe nse was the statements and testimony of Hazziez and Cooper.” Supra ¶ 65. I ag ree with the majority that the evidenc e demonstrates that “[Hazz iez] did not observe the defe ndant shoot [at] him.” Supra ¶ 65. I also agree with the majority that “Cooper stated that defe ndant turned and shot at ‘anothe r person’ afte r shooting Har t; howeve r, there is no evidenc e [t hat] demonstrates that th i s ‘o t h er p erson’ was Hazziez .” Supra ¶ 65. As the defe ndant argu es, the improperly worde d instruction permitted the jury to convict the defe ndant even if it conclude d that the vi ctim of t he attempted murder i n s t ru ction was the murder victim Har

t or some o t her individual. In this reg ard, I repe at the majority ’s observation that Centrell J ackson testified t h at there was another “man with Har t, whom J ackson did not know.” Supra ¶ 17. This other “man with Har t” g ave the jury y et an o t h er choice as to the possible victim of the attempted murder char g e. In fac t, based on the wording of the instruction, the 12 jurors might well have signe d the guilty verdic t form thoug h they

wer e not unanimous as to the identity of the attempted murder victim. Ult i m at el y , the wordingof the jury instruction c ompels the conc lusion the majority implicitl y

rea ches that I state expli citly : the defe ndant’s co n v i ct i o n of attempted first degree murder in this case resulted f rom the jury

instruction error

and not from the e vidence

. Supra ¶ 66. ¶ 76 W h en we consider the woef ully inadequate evidenc e prese nted by t h e S t at e o n t h e identity of the attempted murder victim, the plain err or jury instruction compels that we

re v erse without rema

nd for a new trial. See Burks
, 437 U.S. at 16 (“when a defe n d an t ’s conviction has been overturne d due to a failure of proof at trial, *** the prosec ution cannot complain of pre

judice, for

it has been give n one fair opportuni ty to offer whateve r proof

it could assemble” ). Whil e the defe ndant failed to raise an express contention befor e this court that the evidenc e was insufficient to prove his g uilt of attempted first deg ree murder beyond

a rea sonable doubt, his contention that “the jury could have found d ef en d ant g uilty of attempted first deg ree murder without finding that he possessed the requisite specific intent
to kill Hazziez ” permits us to addre ss the sufficie ncy of the evidenc e on that char g e. See People v. Enoch
, 122 I ll. 2d 176, 190 (1988) (suffic iency o f the evidenc e is not subject to forf eiture) ; I ll. S. Ct . R. 615(b)(2) (the powe rs of the r eviewingcourt include the authority
to “set aside *** the proce eding s *** from which the appea l is taken” ). “When an appellate
court rever ses a criminal conviction and remands t he case for a new trial without deciding defe ndant’s contention that the evidenc e at the first trial was insufficient, we believe that the court risks subjec ting the de fenda nt to double jeopardy .” Taylor , 76 I ll. 2d at 309. ¶ 77 To be clea

r, the improper wording o f t h e j u ry i n s truction on attempted first deg ree murder e x plains the jury ’s guilty verdic t g iven t hat t he State fa iled to muster any evidenc e that the defendant acted wi t h s p ecif ic i ntent to kill Hazziez

. Moreove r, t he wording of the jury instruction permitted a guilty finding without unanimity by the t welve jurors as to the defe ndant’s specific intent to kill one of at least three possible victims of t h e at tempted murder charg e beca

use evidenc e of the intended targ et was insufficient. Where the attempted murder jury instruction did not r equire all 12 jurors to ag ree as to the intended targ et of the defe ndant’s alleg ed specific intent to kill, we cannot say that the jury arr ived at its conclusion

-17-acc ording to the evidenc e. See People v. Pinkney
, 322 I ll. App. 3d 707, 717 (2000) (“c ause

of death instruction was misapplied in this case and has no basis in the evidenc e”)

. Nor was proof sufficie nt that the defe ndant attempted to kill Hazziez by shooting at him as he drove

awa y from the scene of the killing of Har t when no witness identified Hazziez as the targ et of the defe ndant’s g unfire. There is no authority for the State’s implicit contention that it can satisfy its burden to prove the defe ndant’s g uilt beyond a rea sonable doubt as to the element of specific intent to kill by permitting the jury

to infer the ide ntity

of the attempted murder victim from evidenc e that is insufficient rathe r than mere ly ambiguous. Cf. People v. Fountain
, 2011 I L App (1st) 083459-B
, ¶ 14 (an infere nce beyond a rea sonable doubt cannot be drawn as to an element of the offe nse when insufficiently test ed n o n h o moge nous contra band is involved). ¶ 78 I conclude t h at at t empt ed murder was not proven bey ond a reasonable doubt. Iwould, howeve r, rema

nd the cause to the circ uit court to impose sentenc e on the defe ndant’s conviction of ag g ravated discharg e of a firea rm, which t h e t ri al judge merg ed with the attempted murde r convic tion. See People v . Scott , 69 I ll. 2d 85, 88 (1977) ( appellate court proper ly rema

nded cause to the circ uit court to impose sentenc e on conviction that the trial court “ merg ed” w ith another c onviction). ¶ 79 Acc ording ly
, I dissent from that po r ti o n o f the majority ’s decision that rema nds this cause for a new tria l on attempted first degree murder. Supra ¶ 67.

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