## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Stu ckey , 2011 IL App (1st) 092535

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

District & N o. First District, Second D ivision Docke t No. 1-09-2535

Filed September 30, 2011

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

. ) The eviden ce prese nted by the State was sufficie nt to prove bey ond a

rea sonable doubt that defe ndant was g uilty of communicating with a wi t n es s , and the trial court’s err or in failing to comply with th e require ments of Supreme Court Rule 431(b) was not re v er s ible err or under the first prong of the plain-er ror doctrine; howeve r, the cause was

rema nded for corr ection of the fines and fee s order to ref lect the vacation of cer tain assessments an d the application of the prese ntence incar cer ation cre dit to certain fine s.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 06-CR-11 9 8 7 ; the Hon. Matthew E. Cog hlan, J udg e, pre siding.

J udg ment Affir med in part a

nd vacated in part; ca

use re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Br y on M. Reina, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

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

. Spellberg
, Kathlee n Warnick, and Emma Nowac ki, A ssistant State’s Attorney s, of counsel), f

or the People.

Panel J USTI CE CONNORS delivere d the judgme nt of the court, with opinion.
J ustices Cunningham and Har ris concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

en d a nt L ashon Stuckey appea ls from his conviction by a jury for communication with

a witness in violation of section 32-4(b) of the Criminal Code of 1961 (720 I L CS 5/32-4(b) (West 2006) ). Def

endant argues that (1) the State’s evidenc e was insufficient to pr ove him
g uilty of the crime beyond a rea sonable doubt, (2) the trial court failed to proper ly admonish potential jurors pursuant to I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007), and (3) the trial court improperly imposed ce rt ai n fines and fee s during sentenc ing. We aff irm defe ndant’s conviction and sentenc e, but we vac at e i n p art the fines and rema nd for

corr ection of the fines and f ees or der.

¶ 2 I . BA CKGROUND ¶ 3 I n 2002, L atonia J ones wit nessed a murder and i dentified Derric k Roge rs as the killer. Def endant was an acqua intance of Roge rs, and in April 2006, defe ndant approa ched J ones’

m o t h er Della Thomas about J ones’ upcoming appea ranc e as a witness in Roge rs’ m u rd er trial. As Della later testified, defe ndant told Della that Roge rs planned to g ive J ones $1,000 if she failed to appea

r in court and testify ag ainst Roge rs. Whether defe ndant hi m s elf was initially part of this proposed transaction is somewhat unclear from Della’s testimony
, but she stated that “[defenda

nt] said they wer e offe ring –[R og ers] would offe r [J ones] a stack to not to [ sic ] testify
, not to come to court to testify ,” and also that “[i] f she testified, something might happen to he r, something would happen to he r.” At this point, Della appea rs to ha ve taken defenda

nt’ s s t at em ent as som ething of a war ning as to Roge rs’ plans, rathe r t han an expli cit threat by

defe ndant ag ainst J ones. ¶ 4 Ho we v er , De l l a told J ones’ sister Shauntae Thomas about the conver s at i o n wi t h d ef en dant, and when defe ndant approa ched Shauntae the next day he stated his intentions

more expli citly

. Shauntae testified that defe ndant told her, “ ‘[Roger s] said if [J ones] don’ t

come to court, they would g ive her a thousand dollars *** a thousand dollars to not come to court to testify
, but if she do come to c ourt to te stify
, something is g oing to happen to her.”

-2-¶ 5 Both Della and Shauntae related these conver sations to J ones, but it was not long befor e

defe ndant approa ched J ones herse lf. As J o n es l ater testified, defe ndant asked her to “do [hi m] a fa vor,” a nd defe ndant ag ain re iterate d that if J ones ca me to court “ something ba d” would happen to he r. Howe ver, if Jones failed to a ppear she would “g et paid doug h.” ¶ 6 Def

endant was later arr ested a n d c h arg ed with communicating with a witness in violation of section 32-4(b) of the Criminal Code of 1961 (720 I L CS 5/32-4(b) (West 2008)). During jury selec tion, the trial court admonished the venire about the principles set forth in I llinois Supreme Court Rule 431(b) (ef f. May 1, 2007). Although the trial court asked the venire if they acc epted and understood three of the four principles and allowed the potential jurors an opportunity to indicate that they did not, the trial court did not inq u i re wh ether they understood and acc epted the principle that a defe ndant’s decision not to testify cannot be held
ag ainst him. S ee I ll. S. C t. R. 431(b) (ef f. May 1, 2007). ¶ 7 The jury ultimately convicted defe ndant of communicating with a witness, and following posttrial moti o n s , t h e trial court sentenced defe ndant t o eig ht y ear s’ i ncar cer ation. As part of the sente nce, the trial court imposed several fines and fees. After def endant’ s motion t o

rec onsider the sentenc e was denied, defenda nt fi l ed a timely notice of appea l. This case is now bef ore us.

¶ 8 I I . ANALYSI S ¶ 9 De fe n d ant raises three issues on appea l that we will consider in turn: (1) whether the State’s evidenc e was suff i ci en t to prove defe ndant g uilty bey ond a rea sonable doubt; (2) whether the trial court proper ly admonished potential jurors pursuant to I llinois Supreme Court Rule 431(b) (ef

f. May 1, 2007); and (3) whether the trial court proper ly imposed

cer tain fines and f

ees dur ing se ntencing

.

¶ 10 A. Sufficienc y of the Evidenc e ¶ 11 De fe n d an t ’s primary argument on appea l is that the State failed to prese nt suf fi ci en t evidenc e to prove him g uilty bey ond a rea sonable doubt. When revie wing a challeng e to the sufficie ncy of the evidenc e, “the rele vant question is ‘whe ther, afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime bey ond a rea sonable doubt.’ ” (Emphasis in org inal.) People

v. Jack son , 232 I ll. 2d 246, 280 (2009) (quoting Jack son v. Virginia
, 443 U.S. 307, 318-19 (1979))

. We will not reve rse a conviction “unless the evidenc e is ‘unre asonable
, improbable,

or s o u n s at i s fac tory as to justify a rea sonable doubt of the defe ndant’s g uilt.’ ” Id. at 281 (quoting People v . Campbell , 146 I ll. 2d 363, 375 (1992)). ¶ 12 The issue in this case is whether the State proved the mens rea element of the cr ime of

com m u n i ca t ing with a witness. At trial, the State prese nted three differ ent witnesses who

eac h testified, in essenc e, that defe ndant offe red J ones $1,000 in exchang e for her n ot testify ing as a witness in Roge rs’ trial and threatened her with “something bad” if she did testify . The off

ense of communicating with a witness is defined a s follows:
“A person who, with intent to deter any party or witness from testifying fre ely
, fully

-3-and truthfully to any matter pending in any co u rt , o r befor e a Gra nd J ury , Administrative ag ency or any other State or local g overnme ntal unit, forc ibly detains such party or witness, or communicates, direc tly or i n d i rec tly
, to such party or witness any knowing ly false information or a threat of injury or d amage to the
proper ty or person of any individual or offe rs or delivers or threatens to withhold
money or another thing of value to any individual commits a Class 3 felony .” 720 I L CS 5/ 32-4(b) (West 2008).
Acc ording ly
, in order to prove the mens rea el em en t , t he State must demonstrate that defe ndant had the “intent to deter any party or witness from testifyin g fr ee l y , fully and truthfully .” ¶ 13 Def

endant’ s position on appea l is that, at most, the evidenc e at trial showed that his intent

was to deter J ones from showing up in court in order to test i fy

. De fe n d an t argues that the
statute only applies to situations in which a defe ndant intends to coer ce witnesses into altering their testimony or testify ing falsely

. In support, defe ndant relies exclusively on the decision of this court in People v. Robinson
, 186 I ll. App. 3d 1 (1989), which construed the

mens rea element of this crime. I n Robinson
, the defe ndant was convicted of communicating with a wit ness afte r he offe red to pay money to an alleg ed sexual assault victim and her mother in exchang e for not appea ring in court in order to testify ag ainst him. See id. at 2. The appellate court reve rsed the defe ndant’s conviction, finding that the State had failed to prove the mens rea element. See id. at 3. The court ex amined the elements of the crime a nd held that the defe ndant should have been char g ed instead with compounding a crime, which is a differ ent offe nse. See id. at 4 (citing People v. Scribner
, 108 I ll. App. 3d 1138 (1982)) ; se e also 720 I L CS 5/32-1 (West 2008) (def ining the offen se of compounding a crime)

. Compounding a c rime is define d as “r ece iv[ ing] or off er[ing] to another a

ny consideration for a promise not to prosec ute or aid in the pr osection of an offender .” (I nterna l quotation marks omi tted.) (Emphasis in orig in al

. ) Id

. at 3 (quoting I ll. Rev. Stat. 1985, ch. 38, ¶ 32- 1(a) ). The c ourt rea soned as f ollows, which we r eproduc e at leng th for conte x t: “De fenda nt’s offe r of money for the Stephens [ i.e.
, the victim and her mother] not to appea r in court is in return for their nonaid in the prosec ution of the sexual assault char g e. Nonappe ara

nce is a ref

usal to aid in a prosec ution rathe r than a ref u s al to testify other than fre ely
, fully and truthfully

. Fur thermore
, the police office r testified that defe ndant asked Stephen not t o p ro s ecute the case

. Although the State argues that an offe r of money not to appea r in court can be equate d to an offe r of money not to testify fre ely
, fully and truthfully
, there is no supporting authority for this equation. I f the Stephens had acc epted defe ndant’s offe r, the State could still have proce eded with the pros ecution, subpoenaing them as witnesses wher eupon they could then testify fre ely , fully

and truthfully

.
*** We ag ree with the rea soning of the Scribner court that our leg islature proba bly did not intend section 32-4 to be a duplicate of

section 32-1, thus making the l atter superf lous, and further, that criminal st atutes m ust be construed s trictly in favor of

an acc used and nothing is to be taken by intendment or implication ag ainst a

-4-defe ndant beyond the literal a nd obvious meaning of the statute. [Citation.]
Acc ording ly
, we conclude that the State did not prove that defe ndant o ff ered Stephen money to not testify fre ely
, fully and truthfully
, but rathe r offe red her money not to aid in the prosecution of the sexual assault charg e ag ainst him.” Id. at 3-4. One justice dissente d, arguing that Scribner was inapplicable to this situation ba sed on the fac ts of that case

. See id. at 4-15 (Pincham, J
., dissenting)

. I n particula r, the dissent pointed
out that in Scribner the ev i d en ce d emonstrated only that the defe ndant had paid the complaining witness in order to h av e ch ar g es dropped, and it did not establish that the defe ndant h ad ever asked the complaining witness not to testify in court or to testify other than fre ely , fully , and truthfully . See id. at 9 (Pincham, J., dis senting ). ¶ 14 Robinson is direc tly on point and we must addre ss it, but to do so we must examine both the communicating -with-a- witness statute (720 I L C S 5 / 3 2-4(b) (West 2008)) and the compoundin g-a -c ri m e statute (720 I L CS 5/32-1 (West 2008)). The majority in Robinson interpre ted the mens rea element of the communicating -with-a- witness statute as excluding the intent to induce a witness to fail to appea r in court larg ely beca

use the court believed that
to do otherwise would rende r that s t at u t e a m ere duplicate of the compounding -a- crime statute. See Robinson , 186 I ll. App. 3d at 4. ¶ 15 Howeve r, whe n all of the e lements of the two statutes a re e x amined in their e ntirety , it is evident that the statutes are n o t redundant. I n addition to the mens rea element, communicating with a witness has three possible actus reus ele m en t s , o n ly one of which
must be proven in order to establish the crime. The State must prove that a defe ndant either (1) forc ibly detai n ed the witness; (2) communicated to the witness “knowing ly false information or a threat of i njury or damag e to the pr o p er t y o r person” ; or (3) “off er[ed] or deliver[ed] or threaten[ed] to withhold money or another thing of value.” 720 I L CS 5/32-4(b) (West 2008). I n contra st, the compounding -a- crime statute only contains a single actus reus element: “re ceiv[ing] or offe r[ing] to another any co n s idera tion for a promise not to prosec ute or a id in the prosecution of a n offe nder.” 720 I L CS 5/ 32-1(a ) (West 2008)). ¶ 16 The problem with Robinson ’s construction of the communicating -with-a- witness statute is that it f ocuses solely on the third potential actus reus element in construing the mens rea element. I t does not consider how its interpre tation of the mens rea element would apply to the other two alternative actus reus elements. This is likely due to the fac t that the third communicating -with-a -witness element and the sole element of compounding a crime both deal with paying money to witnesses. Howeve r, when Robinson ’s interpre tation of the mens

rea element is applied to the other actus reus elements, inconsistencies immediately appea r. ¶ 17 Assume that, as Robinson held, a defe ndant cannot be convicted of communicating with a witness if his intent is solely to induce a witness not to appear in court in order to testify
ag ainst him. I f, as in Robinson
, a defe ndant offe rs a witness money i n ex ch ange for not testify ing, then he may simply be char g ed and convicted of compounding a crime. Yet what about a defe ndant who kidnaps complaining or materia l witnesses and detains them until the trial is over? Detention is expli citly contemplated by section 32-4(b)
, y et under Robinson ’s interpre tation of the mens rea element, that defe ndant cannot be convicted of communicating with a witness. Howeve r, neither can he be convicted of compounding a crime under section

-5-3 2 -1 (a) beca use that section has only a single possible actus reus element that can n o t b e satisfied by detention of a witness. Simi larly
, a defe ndant who threatens to kill witnesses in order to keep them from appea ring in court could not be convicted under either statute, one for lack of mens rea and the other for lack of actus reus

. Although there are a n umber of other offe nses enumer ated in the Criminal Code of 1 9 6 1 t h at punish interfe renc e with judicial proce dure (see ge nera lly 720 I L CS 5/art. 32 (West 2008)), not on e o f them would

cover this ty

pe of criminal behavior if we wer e to acc ept Robinson ’s construction of the offe nse of c ommunicating w ith a witness. ¶ 18 Although Robinson ’s interpre tation of the mens rea element makes sense in the limited
context of a defe ndant who pay s witnesses not to testify
, such an inte rpretation is not

rea sonable when it is applied to the rest of section 32-4(b)

. Given that we must “pre sume [t hat] the leg islature did not intend absurd results” ( People v. McCarty
, 223 I ll. 2d 109, 126 (2006))
, we cannot acc ept an interpre tation of section 32-4(b) that would cre ate such an obvious loophole and allow acts such as detaining and threatening witnesses that are expli citly contemplated by the statute t o go u n p u nished. We acc ording ly cannot acc ept Robinson ’s construction of the mens rea element of communicating with a witness and we must respec tfully

decline to f

ollow that prec edent. ¶ 19 Having declined to f ollow Robinson
, the question rema ins whether the intent to deter a witness from appea

ring in court in order to te stify satisfies the mens rea element of section 32-4(b)

. Statutory interpre tation is an is sue of law that we r ev iew de novo
, and the canons of st atutory construction are we ll known. See McCarty , 223 I ll. 2d at 124. As the s upreme court ha s summarized: “The fundame ntal rule of statutory interpre tation is to g ive eff ect to the intent of the leg islature. [C itation.] Acc ording l y , a court must consider a statute in its entirety
, keeping i n m i n d the s ubject it addre sses and the leg islature’s appare nt objective in

enac ting it. [Citation.] The best indication of the leg islature’s intent is the lang uag e of the statute, g iven its plain and ordinary meaning

. [C itation.] Where the lang uag e is clea r and unambig uous, it will be g iven eff ect without r esorting to f

urther aids of construction. [Cit ation.]” I d. ¶ 20 Given that sec tion 32-4 does not define any of its terms, we resort t o the dictionary for their ordinary and popular meaning

. See People v. Cardamone
, 232 I ll. 2d 504, 513 (2009). The key mens rea phrase in section 32-4(b) is “intent to deter any p ar t y o r witness from testify ing fre ely
, fully and truthfully .” (Emphasis added.) 720 I L CS 5/32-4(b) (West 2008). The verb “dete r” is ordinarily understood to mean “to turn aside, discourag e, or preve nt from acting by fea

r or consideration of dang erous, unpleasa nt at t en d ant circ umstances or conseque nces.” Webster’s Third Ne w Interna tional Dictionary

616 (1981). ¶ 21 Apply ing this definition to section 32-4(b)
, it is appar ent that the statute encompa sses not only the i ntent to discourag e a witness from testifying f ree ly , fully , and truthfully , but also the intent to preve nt the witness from testify ing at all. The term “pre vent” car ries with it the implication of ma

k in g s o me thing phy sically impossibl e, rathe r than mere ly chang ing the way in which it occur s. See id. at 1798 (def ining “pre vent” as “to keep from happening or exis ting
esp. by prec autionary measure s : *** make impossibl e throug h advanc e provisions”). Under

-6-these definitions, the plain languag e of the statute encompa sses a mental state that is focuse d

on the objective of making fre e, full, and truthful testimony ag ainst a defe ndant impossibl e. One method of preve nting such testimony is by ensuring that the witness does not appea r in
court in order to g ive it, althoug h this method is by no means the exclusive one for achie ving such an objective. Acc ording ly
, the mens rea for communicating with a witness includes the intent to prevent a

witness from appe aringin court in order to testify

. ¶ 22 This rea ding of the statute is reinfor ced when we consider section 32-4 (b ) al o n g side section 32-4(a), which define s the crime of communi cating with a juror. The mens rea for this offense is pa

rallel but not quite identical to that of c ommunicating with a witness and, rathe r than ref

err ing to “intent to deter ” (720 I L CS 5/32-4(b) (West 2008)), communicating with a juror require s an “intent to influence ” (720 I L CS 5/32-4(a) (West 2008)). The ordinary meaning of “influenc e” is “to aff ect or alter the conduct
, thought, or char acte r of by indirect

or intan g ib le me a

n s

. ” ( E mp h a s is added.) Webster’s Third New I nternational Dictionary 1160 (1981). This definition is rema rkably close to the mens rea require ment that Robinson rea d into section 32-4(b)

. See Robinson
, 186 I ll. App. 3d at 3 (“Sec tio n 3 2 -4 (b) appea rs to be direc ted to the preve ntion of paying a witness to testify other than truthfully and of her own fre e will.” (Empha sis added.))

. ¶ 23 Howeve r, the leg islature used two differ ent words when defining the respe ctive mens rea elements of communicating with a juror and communicating with a witness, and we cannot presume that the differ ence was any thing other than intentional. See McCarty
, 223 I ll. 2d at 124. Acc o rd i n gl y , section 32-4(b) cannot mean, as Robinson held, that the mens rea of communicating with a witnes s i s s at i sfied only by the intent for witnesses to alter their intended testi m o n y b u t to still appea r in court. Such an interpre tation would rende r the differ ence betwee n the two words meaning less, and we cannot presume that the leg islature intended for these terms to be mere surplusag e. See People v. Frieberg
, 147 I ll. 2d 326, 349 (1992) (“Another rule of statutory construc t i o n * * * is that the presence of surplusage will
not be presumed.” ); cf. id. (“[B]eca use the leg islature used both ‘purpose ’ and ‘intent,’ with differ ent modify ing lang uag e, it appea rs that a distinction was intended betw ee n t h e two elements.” ). ¶ 24 I n light of the above analy sis, we hold that the mens rea of communicating with a witness includes, at the very least, the in tent to deter a witness from appea ring in court in order to testify

. We caution, howeve r, that our holding is in no way intended to limit the mens rea to only that specific mental state. Whether the mens rea of section 32-4(b) may be satisfied by evidenc e of some other intent is a question that we do not r eac h beca use it is not pre sented by the fa cts of this case , and we express no opinion on the subject. ¶ 25 All that now rema ins is to apply these principles to the eviden ce that was prese nted at trial. Shauntae, Della, and J ones all testified that defe ndant approa ched them and offe red J ones $1,000 if she d i d n o t come to court in order to testify ag ainst Roge rs, or else “something ” would happen. Even if we wer e to assume, as defe ndant ar gu es , t h at Della’ s testimony was i n co nsistent with that of Shauntae and J ones on the issue of defe ndant’s intent, resolving co n fl icting testimony is a function of t he jury

. See Jack son , 232 I ll. 2d at 281. The evidenc e that was prese nted at trial, if believed by a rational juror, established that defe ndant not only

offe red mone y to J ones but also threatened her, and that he did so with

-7-the intent that the offe r and acc ompanying threat would dissuade her from appea ring in court in order to te stify

. This e vidence is suf ficient for a rational juror to f ind de fenda

nt guilty of communicating with a witness in violation of section 32-4(b)
, and we acc ording ly aff irm the jury ’s ver dict.

¶ 26 B. Voir Dire ¶ 27 Def

endant next argues that the trial court err ed by failing to proper ly admonish potential jurors pursuant to I llinois Supreme Court Rule 431(b) (e ff

. M ay 1, 2007). This issue is controlled by the supreme court’s rec ent decision in People v. Thompson
, 238 I ll. 2d 598 (2010). ¶ 28 Def

endant conce des that he failed to proper ly prese rve this issue for revie w by objecting during voir dire and including the issue in his posttrial motion. The issue i s conseque ntly forf eit and may only be revie wed under the plain-er ror doctrine. See id. at 611 (citing People

v. Enoch
, 122 I ll. 2d 176, 186 (1988))

. I n order to obtain reve rsal and a new trial, defe ndant bear s the burden of persua sion. See id. at 613. T h e first step of plain-er ror analy sis is deter mining whether an err or occur red. See id. The only question in deter mining err or in this

case is whether the trial court strictly complied with Rule 431(b) when questioning the jurors. The supre me cour

t describe d the cor

rec t analy sis as follows in Thompson : “The lang uag e of Rule 431(b) is clea r and unambig uous. The rule states that the trial court ‘shall ask’ potential jurors whether they understand and ac ce p t the

enumer ated principles. Whil e the prospec tive jurors may be questioned individually

or in a g roup, the method of inquiry must ‘provide eac h juror an o p p o rt u n i t y to respond to specific questions conc erning the [Rule 431(b)] principles.’ The

co m m i t t ee comments emphasize that trial courts may not simply g ive ‘a broad
statement of the applicable law followed by a g ener al question conce rning the juror’s willingness to follow the la w.’ [Cit ation.] Rule 431(b), ther efor e, mandates a specific question and response proce ss. The trial court must ask each potential juror whether he or she understands and acce pts

eac h of the pri nciples in the rule. The questioning may be perf ormed either i n d i vidually or i n a group, but the rule require s an opportunit y for a response fro m

eac h prospec tive juror on their understanding and acc eptanc e of those principles.” Id. at 607. ¶ 29 I t is undisputed in this case , and the State conce des, that the trial court neg lected to ask the jurors whether they understood and acc epted the fourth principle, that is, that defe ndant need not testify and that his decision not to cannot be held ag ains t h i m

. T h e result of this omission is straig htforwa rd: the trial court failed to comply with Rule 431(b)’ s clea r require ments, and that is err or under Thompson

. Cf. id. (“Most notably
, the trial court did not quest i on any of the prospec tive jurors on the third principle, whether they understood and

acc epted that de fenda

nt was not requir ed to produc e any evidenc e on his own behalf

. Rule 431(b) require s trial courts to addre ss each o f t h e enumerated principles. The failure to addre ss the third principle, by itself, constitutes noncompliance w ith the rule.”)

. ¶ 30 Having found that the trial court err ed, the rema ining question is whethe r t h e err or is

-8-reve rsible. An err or is reve rsi ble under the plain-er ror doctrine only wher e “(1) a clea r or obvious err or occur

red and the evidenc e is so closely balanc ed that the err or 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 clea r or obvious er

ror oc curr ed and that error is so serious that it affe cted the f airne ss of the defe ndant’s trial and challeng ed the integ rity of the judicial proce ss, reg ardle ss of the closene ss of the evide nce.” People v . Piatkowski , 225 I ll. 2d 551, 565 (2007). ¶ 31 The supreme court in Thompson found that a Rule 431(b) err or of this kind is rever sible under the second prong of the doctrine only wher e a defe ndant can demonstrate that the err or resulted in impaneling a biased jury

. See Thompson
, 238 I ll. 2d at 613. Def endant conce des that he cannot car

ry his burden under th e s ec ond prong , and so he instead seeks reve rsal under the first prong of the doctrine. H oweve r, we are not pe rsuade d that the evidenc e was closely balanc ed. There was ample evidenc e prese nted at defe ndant’s trial from which a jury could find that defe ndant c o mm u n ic a te d w it h a w it n e s s

. Sp e c ifically
, three witnesses testified that defe ndant offe red Jones money in exchang e for not testify ing a g ainst Roge rs, and this testimony was unrebutted and unimpeache d. Moreove r, even if we wer e to assume that the evidenc e was closely balanc ed, defenda nt has n o t d emonstrated how the t rial court’s Rule 431(b) err or could hav e t i p p ed the scale s ag ainst him and resulted in his conviction. Def endant only offe rs the speculative theory that “it could have been defe ndant’s trial strateg y [of not testify ing] that tipped the j ury ag ainst him. ” De fe n d ant offers no evidenc e from the rec ord in support of this conjec ture other than the mere fac t of the err or and, without
more, he cannot car

ry his burden of persua sion. Be cause defe ndant has not me t his burden, the first prong of the plain-er ror doctrine cannot excuse his forf eiture of this issue. Cf. id. at 615.

¶ 32 C. Fines and F ees ¶ 33 The final issue that defe ndant raises is w hether the trial court proper ly imposed sever al fines and fee s, which total $570. The St at e conce des that imposit ion of a $5 court sy stem assessment, a $5 drug court assessment, and a $30 Children’s Advoca cy Center assessment

wer e improper. See 55 I L CS 5/5-1101(a) (West 2008); 5-1101(f -5) (West 2006). The State also conce des that defe ndant is entitled to a $5-per -day prese ntence incar cer ation cre dit for

a $10 mental health fine (55 I L CS 5/5-1101(d-5) (West 2008)), and a $5 y outh division/peer court fine (55 I L CS 5/5-1101(e) (West 2008)). Howeve r, the parties disag ree ab o u t two

rema ining assessments: a $10 assessment under section 17 of the County J ail Act (730 I L CS 125/17 (West 2008)), and a $200 DNA analy sis assessment un d er s ec t i on 5-4-3( j) of the Unified Code of

Correc tions (730 I L CS 5/ 5-4-3( j) (West 2008)). ¶ 34 Def

endant argues that he should not have been assessed the $10 assessment under section 17 of the County J ail Act (7 3 0 I L C S 1 2 5 / 17 (West 2008)) beca use he did not rec eive any medical treatment while he was detained pending trial. Thi s issue is controlled by the
supreme court’s decision in People v. Jack son , 2011 I L 1 1 0 6 1 5

. On fac ts identical to this

case , the supreme court held that the prea mended version of section 17 (the version that defe ndant arg

ues applies to him) imposes a mandatory fee on all convicted defe ndants. See id. ¶ 24. In light of Jack

son , the trial cour

t properly assessed the $10 fine.

-9-¶ 35 Turning to the $200 assessment under section 5-4-3( j) of the Unified Code of Corre ctions (730 I L C S 5/5-4-3(j) (West 2008)), defe ndant argues that this assessment is a fine that is subject to a prese ntence incar ce ra tion setoff, rely ing on People v. Long
, 398 I ll. App. 3d 1028, 1031 (2010). The State asser ts that the assessment is a fe e and argues that Long was wrong ly decide d. I n Long
, this court applied the supreme court’s analy sis in People v. Jones
, 223 I ll. 2d 569 (2006), to section 5-4-3( j) and h el d t h at t h e assessment is a fine, which qualifies for

the setoff under se ction 110-14(a ) of the Code of Criminal Procedur e of 1963 (725 I L CS 5/ 110-14(a ) (West 2008)). See Long , 398 I ll. App. 3d at 1031-34. ¶ 36 Although the Jones analy s i s i n Long is persua sive, we do not think that Long survives the supreme court’s rec ent decision in People v. Ma r s h a l l
, 242 I ll. 2d 285 (2011). I n Marshall
, the s u p re m e court held that the DNA analy sis char g e under section 5-4-3( j) is authorized “only wher e that defe ndant is not curr ently reg istered in the DNA databa se.” Id. at 303. The most important consideration in a Jones fine-or -fe e analy sis is that “a ‘fine’ is part of the punishment for a conviction, wher eas a ‘fe e’ or a ‘cost’ seeks to rec oup expenses incurre d by the State–to ‘compe nsat[e] ’ the state for some expenditure i n cu rr ed in
prosec uting the defe n d an t

. ” Jo n es , 223 I ll. 2d at 582; acc ord People v. Grave s , 235 I ll. 2d 244, 250-51 (2009). Given that Marshall found that section 5-4-3( j) allows the assessment of the char g e only when the State actua lly incurs a cost in reg istering a defe ndant in the DNA d at ab as e, it follows that the char g e is a compensatory fee rathe r than a punitive fine. Although Marshall did not expli cit l y decide whether the DNA char g e is in fac t a fine or a fee
, in light of Marshall we must decline to follow Long

. I nstead, we find that the char g e is

a fee
, and it is there fore not subject to the prese ntence incar cer ation cre dit. Cf. People v. Anthony
, 408 I ll. App. 3d 799, 8 0 9 (2 0 1 1 ) (pre

-Marshall case , but rea ches the same conclusion).

¶ 37 I I I . CONCL USI ON ¶ 38 As ex p l ai n ed above, we aff irm defe ndant’s conviction and sentenc e of inca rce ration. Howeve r, we vaca

te the $5 court sy stem assessment (55 I L CS 5/5-1101(a) (West 2008)), the $5 drug court assessment (55 I L CS 5/5-1101(f) (West 2006)), and the $30 C h i ldren’s Advoca cy Center assessment (55 I L CS 5/ 5-1101(f -5) ( West 2006)). We apply defe ndant’s
prese ntence incar cer ation cre dit to the $10 mental health fine (55 I L CS 5/5-1101(d-5) (West 2008)), and the $5 y outh division/peer court fine (55 I L C S 5 / 5 -1101(e) (West 2008)). Finally
, we observe that defe ndant has not argued in his brief on ap p ea l t h at the $10 fine under section 17 of the County J ail Act (730 I L CS 125/17 (West 2008)) is also subject to the
prese ntence incar cer ation cre dit, so we consider that specific issue to be forf eit and take no action on that fine other than aff irming its assessment by the trial court. See I ll. S

. C t

. R. 341(h)( 7) (ef

f. J uly 1, 2008). This cause is rema nded to the trial court for re ca l cu l ation of defe ndant’s fine s and cor respondingcorr ection of the fines and f ees or der.

¶ 39 Affir

med in part a

nd vacated in part; ca

use re manded.

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