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                               Appellate Court                             Date: 2018.07.10
                                                                           13:08:54 -05'00'




                    People v. Tatera, 2018 IL App (2d) 160207



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            MICHAEL G. TATERA, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-16-0207


Filed              May 15, 2018
Rehearing denied   June 11, 2018



Decision Under     Appeal from the Circuit Court of McHenry County, No. 12-CF-1122;
Review             the Hon. Sharon L. Prather, Judge, presiding.



Judgment           Affirmed.


Counsel on         Michael J. Pelletier, Thomas A. Lilien, and James K. Leven, of State
Appeal             Appellate Defender’s Office, of Elgin, for appellant.

                   Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
                   Delfino, Lawrence M. Bauer, and Steven A. Rodgers, of State’s
                   Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE BIRKETT delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Hudson and Justice Jorgensen concurred in the
                   judgment and opinion.
                                               OPINION

¶1       Following a brief jury trial in the circuit court of McHenry County, defendant, Michael G.
     Tatera, was convicted of the offense of aggravated driving under the influence of alcohol
     (DUI) (625 ILCS 5/11-501(a)(2), (d)(1)(A) (West 2012)), and he was sentenced to an
     eight-year term of imprisonment. Defendant appeals, arguing that (1) the evidence was
     insufficient to convict him of the offense beyond a reasonable doubt, (2) the trial court erred in
     allowing the jury to view a part of the video of defendant’s arrest that depicted an improperly
     conducted field sobriety test, (3) the State shifted the burden of proof in its rebuttal closing
     argument, and (4) the trial court improperly used a double enhancement in fashioning his
     sentence. We affirm.

¶2                                        I. BACKGROUND
¶3        We summarize the pertinent facts appearing in the record. Officer Rich Kresen of the
     Spring Grove Police Department, the sole witness presented at trial, testified that, on October
     6, 2012, at about 8:57 p.m., he was on duty in a marked police car. The car’s video-recording
     system was on and operating. The audio-recording system was partially working; the
     microphone inside the cabin of the car was fully working, but Kresen’s body microphone was
     not functioning. Kresen’s car was parked on the side of the road, facing east, at the intersection
     of Main Street and Blivin Road in Spring Grove. At that time, Blivin Road was completely
     blocked due to a large hole that opened in the westbound lane. The blockade of Blivin Road
     extended from Main Street to Lorraine Street. A number of orange and white reflective
     barricades had been erected around the hole, along with barricades marked with signs
     indicating “road closed to through traffic.”
¶4        At 8:57 p.m., Kresen observed a car traveling west on Blivin Road, through the blocked
     portion of the road. As the car approached, Kresen observed it exit the westbound lane into the
     eastbound lane to avoid the large hole and its surrounding barricades. Kresen testified that the
     car did not strike any of the barricades or cones that had been emplaced. Once the car reached
     the corner of Blivin Road and Main Street, it turned right. The car came to a full stop before it
     entered northbound traffic on Main Street. Kresen followed the car.
¶5        As Kresen followed the car, he did not see it weave or cross either the center line or the fog
     line of the road. Kresen activated his emergency lights and shined his spotlight on the car to
     indicate that it should pull over. After up to 10 seconds, the driver turned on the car’s right
     signal light and pulled to the side of the road. The car did not drive into the ditch at the side of
     the road; it smoothly pulled to a stop, straddling the fog line, with its right-side tires on the
     gravel shoulder and parallel with the fog line.
¶6        Kresen identified defendant in court as the person who was driving the car. (When Kresen
     made the identification, defendant, apparently in jest, pointed at one of his lawyers.) Kresen
     testified that, when he approached the vehicle, he detected a moderate odor of an alcoholic
     beverage. Defendant produced his Wisconsin driver’s license without any fumbling or
     difficulty. Kresen asked defendant where he was going and defendant stated, “Wisconsin.”
     Kresen asked defendant where he was coming from, and he again stated, “Wisconsin.” Kresen
     said to defendant that his answers did not make any sense. Defendant then informed Kresen
     that he was lost and was just trying to make it home. Kresen informed defendant that he was in
     Illinois.

                                                  -2-
¶7         During the exchange, Kresen observed that defendant’s eyes were “glassy.” Based on
       defendant’s driving through the closed road, the appearance of his eyes, and the odor of
       alcohol, in light of his training and experience, Kresen suspected that defendant might be under
       the influence of alcohol. Kresen asked defendant if he had had anything to drink, and defendant
       denied that he had. Kresen asked defendant to get out of his car, and defendant complied. As he
       exited his car, defendant did not stumble or hold onto the car. He walked to the front of
       Kresen’s squad car with no apparent difficulties.
¶8         Kresen told defendant to stand with his feet together and his hands at his sides. At first,
       defendant complied, but then he seemed to shrug and placed his hands in his pockets. Kresen
       again directed defendant to place his hands at his sides. Kresen testified that it was a cool
       October evening, and when asked if it had been “cold,” he emphasized that it was “cool.” The
       recording did not appear to show that either Kresen’s or defendant’s breath was steaming in the
       night air. After being directed for the second time to place his hands at his sides, defendant
       briefly complied, again appeared to shrug, and again placed his hands in his pockets. Kresen
       testified that, based on these actions, he concluded that defendant was not following his
       instructions. Kresen also testified that, as this interaction in front of the squad car was taking
       place, he continued to smell a moderate odor of alcohol on defendant’s breath.
¶9         Kresen testified that he sought to conduct field sobriety tests to assess defendant’s balance
       and ability to follow instructions. In particular, Kresen explained, he was attempting to have
       defendant perform the one-leg-stand test. Kresen explained that it simulates a divided-attention
       task, such as driving a car, because the subject is required to balance on one foot while reciting
       a string of numbers in a particular fashion. According to Kresen, he instructed defendant to
       stand with his feet together and to place his arms at his sides. Kresen testified that defendant
       did not initially follow these instructions because he once again placed his hands in his
       pockets. After another instruction to remove his hands from his pockets, Kresen then instructed
       defendant to raise one foot (defendant’s choice as to which foot) about six inches with the toe
       pointed forward and to count: 1001, 1002, and so on. Kresen then demonstrated the
       one-leg-stand test for defendant and instructed defendant to begin.
¶ 10       Defendant asked Kresen to explain the test again. Kresen refused, telling defendant that he
       was not going to explain it again. Kresen testified that he believed that defendant understood
       the instructions. At this point, defendant became visibly agitated. Kresen testified that
       defendant exclaimed, “just arrest [me],” and refused to perform any tests. At that point, Kresen
       decided to arrest defendant. Kresen testified that he made the decision to arrest based on his
       observation of defendant ignoring the “road closed” signs and driving through a dangerous
       portion of Blivin Road, defendant’s failure to immediately pull over when Kresen activated his
       flashing lights, defendant’s apparent confusion upon the initial questioning, defendant’s glassy
       eyes, the odor of alcohol in the car and on defendant’s breath, defendant’s failure to follow
       Kresen’s instructions, defendant’s failure and refusal to complete the field sobriety tests, and
       defendant’s sudden agitation and argumentativeness when Kresen would not instruct
       defendant a second time about the one-leg-stand test. When defendant became agitated,
       refused to perform any tests, and exclaimed, “just arrest [me],” Kresen obliged and placed
       defendant under arrest. Kresen handcuffed defendant. Defendant was fully compliant with the
       remaining arrest procedures.
¶ 11       Once defendant was in the car, the cabin microphone picked up defendant sighing, but
       beyond that, defendant was entirely quiet. Kresen testified that defendant was taken to the

                                                   -3-
       police station, where he was observed for a period of time. During that time, defendant was
       compliant and quiet; he did not curse or otherwise berate Kresen or the other police officers,
       and defendant did not fall asleep or ask to use a restroom. Defendant was asked to perform a
       breath test, but defendant refused.
¶ 12       On cross-examination, Kresen admitted that he did not ask defendant if he had allergies or
       another illness that could have potentially explained why defendant’s eyes were glassy. After
       placing defendant under arrest, Kresen did not find any open containers of alcohol or any other
       contraband in the car or on defendant’s person.
¶ 13       Following defendant’s arrest, he was indicted on two charges of aggravated DUI, with
       count I alleging a Class X felony because defendant had seven previous convictions of DUI,
       and count II containing the same allegations but charging a Class 1 felony. Before trial, the
       State nol-prossed count II.
¶ 14       At trial, after Kresen gave the testimony summarized above, a video of the arrest was
       published to the jury. In the video, 21 seconds of Kresen’s administration of the horizontal
       gaze nystagmus (HGN) test was redacted. Defendant had filed a motion in limine seeking to
       preclude the entirety of the HGN test on the grounds that Kresen had not properly administered
       the test. The State agreed that Kresen had not properly administered the test, but it argued that
       the first portion of the test should nevertheless be admitted and published to the jury because,
       in that first portion, defendant was seen placing his hands in his pockets, taking them out at
       Kresen’s apparent direction, and then placing them back in his pockets, at which point Kresen
       apparently did not again instruct defendant to remove them. The trial court agreed that the
       State could show the jury the first portion of the test to illustrate defendant’s behavior and
       inability to comply with Kresen’s instructions. We note that Kresen testified generally about
       field sobriety tests and never mentioned the HGN test by name or explained any of his actions
       in conducting the HGN test. The trial court instructed the jury that the video was redacted
       because “there [was] nothing relevant contained on that portion of the video.”
¶ 15       During the State’s rebuttal closing argument, the prosecutor remarked:
                    “That’s why they have these DUI evaluations, that’s why they send these officers to
                training, because somebody’s not going to simply state ‘I’m a drunken mess, arrest
                me.’ Oh, wait a minute, he did say ‘go ahead and arrest me.’ That’s consciousness of
                guilt.
                    Don’t be blinded by the defense attorney saying he was able to do this, he was able
                to do that. He didn’t show a sign here, he didn’t show a sign there. Don’t be blinded to
                the signs that he did show, the obvious signs. We don’t know how he would have done
                on the physical portion of those field sobriety tests, we don’t know what his breath
                alcohol level was, because he refused to do those things. That’s called consciousness of
                guilt. If he wasn’t guilty, why didn’t he take the test—
                    [DEFENSE COUNSEL]: Objection, Judge, burden shifting.
                    THE COURT: Overruled.
                    [THE STATE]: That’s called consciousness of guilt.”
¶ 16       Later in the rebuttal closing argument, the prosecutor remarked:
                    “There is one more decision, though, that you heard about, a decision that’s
                absolutely telling about his consciousness of guilt and that you can infer his
                consciousness of guilt from, and that’s that he refused a breath test at the station.

                                                   -4-
                Remember in your deliberations and use that as one of the factors that you use in
                finding the defendant guilty. Again, if he wasn’t under the influence, why didn’t [he]
                take that simple test? If he wasn’t guilty, why did he refuse field sobriety testing? He
                didn’t take that test because he was impaired. When you drink and drive to the point
                where you’re going around barricades, driving into oncoming lanes, have no idea
                where you are, can’t follow simple instructions, yell at an officer, refuse field sobriety
                testing, tell an officer ‘just arrest me’ and refuse a breath test, you combine all those
                factors, you’re driving under the influence of alcohol and that’s a crime in this state.”
       The defense attorney did not object to the second set of remarks.
¶ 17        Following the argument, the jury returned a verdict of guilty. Defendant filed a timely
       posttrial motion seeking a judgment notwithstanding the verdict or, in the alternative, a new
       trial. The trial court denied the motion. At the sentencing hearing, defendant spoke in
       allocution, leading to a colloquy between defendant and the trial court before the trial court
       pronounced sentence:
                    “THE DEFENDANT: Just that I’m very sorry that this case is here. That I have a
                very good support system outside. My family, my fiancée, Deborah. I intended on—I
                worked as a co-facilitator for a Smart Group from about 2007 to 2010, which I would
                intend to be going back to doing upon release in Waukesha, Wisconsin, where I
                live—we were living.
                    And I can assure the Court that this type of thing will never happen again being that
                I intend on getting married. We have a house. I intend on settling down and going
                ahead and doing that. And I am very aware of how serious this is and that it never
                happens again. Thank you.
                    THE COURT: Mr. Tatera, sir, do you recognize you have a serious problem with
                alcohol?
                    THE DEFENDANT: Yes. Absolutely.
                    THE COURT: Do you recognize if you don’t do something about that, you’re
                never going to be able to live a normal life?
                    THE DEFENDANT: Yes.
                    THE COURT: Are you ready to do something about it?
                    THE DEFENDANT: Absolutely.
                    THE COURT: Why haven’t you done it in the past, sir?
                    THE DEFENDANT: That’s why I was co-facilitating the Smart Group beyond
                having to by court order or anything by that sort, continued for three years, you know,
                before work started getting in the way of that.
                    Now I realize that is something I will continue and stay in because it’s something
                where I keep it foremost in my mind that that is a problem. That’s something I can
                never go back to again.
                    THE COURT: Mr. Tatera, I don’t think anybody in the courtroom [is] arguing that
                you are a bad person. However, every time you get behind the wheel of an automobile
                and you are drunk, you are endangering the lives of innocent people that are out on the
                highway, not only your own life, those of others who [are] out on the road at the same
                time.


                                                    -5-
                    You are extremely fortunate with as many DUIs that you have had that you have
               not killed somebody yet. Do you recognize that?
                    THE DEFENDANT: Yes, ma’am. Absolutely.
                    THE COURT: Do you recognize that your crime does in fact, sir, put others in
               danger?
                    THE DEFENDANT: Yes. Yes.
                    THE COURT: The court has considered the pre-sentence investigation. It has
               considered the facts surrounding the crime for which the Defendant is being sentenced.
               It has considered all statutory factors in aggravation and mitigation. It has considered
               the arguments of the State, the arguments of the Defense, and the statements of the
               Defendant.
                    The Court finds in aggravation Defendant’s past criminal history. This is
               Defendant’s ninth offense for driving under the influence of alcohol.
                    [The] Court therefore is going to sentence the Defendant to a period of eight years
               Illinois Department of Corrections.”
¶ 18       Following the pronouncement of sentence, the trial court admonished defendant about his
       rights:
                    “Sir, you have the right to appeal this sentence. Before you could do that, you’d
               have to file with the Court within 30 days from today’s date a notice of appeal. Or if
               you wish to choose to only challenge the sentence that was imposed today, you have 30
               days from today’s date to file a motion asking the Court to reconsider your sentence.
               You would then have 30 days from the date that the Court rules on that motion to file a
               notice of appeal.
                    You are entitled to legal representation. If you were indigent and could not afford to
               hire a lawyer one would be appointed for you by the Court without cost to you to assist
               you in any motions and to assist you on appeal.
                    Also a copy of all pertinent transcripts would be made available to you without
               cost.
                    Any issues or claims of error not set forth in your motion would be deemed waived
               for purposes of appeal.”
¶ 19       Defendant did not file any further motions, but he immediately filed a timely notice of
       appeal.

¶ 20                                            II. ANALYSIS
¶ 21       On appeal, defendant first challenges the sufficiency of the evidence. Next, defendant
       argues that the trial court abused its discretion by allowing the jury to see a portion of the
       administration of the HGN test in the arrest video. Defendant also argues that the State’s
       comments during closing argument shifted the burden of proof. Finally, defendant contends
       that the trial court erred in passing sentence by double-counting his previous convictions, both
       as a qualifying factor for a Class X offense and as an aggravating factor to increase the length
       of his sentence. We consider each contention in turn.




                                                    -6-
¶ 22                                   A. Sufficiency of the Evidence
¶ 23        Defendant first challenges the sufficiency of the evidence. On a challenge to the
       sufficiency of the evidence, the relevant question is whether, when viewing the evidence in the
       light most favorable to the prosecution, any rational trier of fact could have found the essential
       elements of the offense beyond a reasonable doubt. People v. Torruella, 2015 IL App (2d)
       141001, ¶ 39. In an appeal, we do not retry the defendant or substitute our judgment for that of
       the jury. Id. It is the province of the jury to weigh the evidence, assess the witnesses’
       credibility, resolve any conflict in the evidence, and draw reasonable inferences and
       conclusions from the evidence. Id. Even so, while we accord great deference to the jury’s
       decision whether to credit specific testimony, the jury’s decision is not conclusive. People v.
       Scott, 2018 IL App (2d) 151056, ¶ 22.
¶ 24        Defendant was convicted of DUI. To sustain a conviction of DUI, the State must prove that
       a defendant was in actual physical control of a car while he or she was under the influence of
       alcohol. People v. Phillips, 2015 IL App (1st) 131147, ¶ 17. In this case, defendant contests not
       that he was in actual physical control of his car, only that he was under the influence of alcohol.
¶ 25        To be under the influence of alcohol, a defendant must be under the influence to a degree
       that renders him or her incapable of driving safely. Id. ¶ 18. Circumstantial evidence may be
       used to prove this; further, the testimony of a single, credible police officer may alone sustain a
       conviction of DUI. Id.
¶ 26        In this case, Kresen personally observed defendant disregard his personal safety and the
       numerous signs and barricades to drive through a portion of Blivin Road that had been closed
       because of a large hole in the westbound lane of the road, the direction in which defendant was
       traveling. Defendant avoided the hole by moving his car into the oncoming lane, although
       defendant did not encounter an oncoming vehicle in the closed portion of Blivin Road. Once
       defendant entered traffic on Main Street, Kresen observed him driving north for a brief period
       of time. When Kresen activated his emergency lights, defendant hesitated for about 10 seconds
       before pulling to the side of the road.
¶ 27        When Kresen approached the car and initiated the personal encounter with defendant, he
       smelled a moderate odor of alcohol coming from defendant’s vehicle. Defendant seemed
       confused, giving the same answer when asked both where he was going and where he was
       coming from. Kresen concluded that defendant’s responses did not make sense. Kresen also
       observed that defendant’s eyes were “glassy.”
¶ 28        Kresen asked defendant to exit his car and defendant complied. Kresen subsequently
       determined that defendant was unable to follow his directions. Kresen repeatedly instructed
       defendant to keep his hands out of his pockets, while defendant repeatedly placed his hands
       into his pockets only seconds after receiving Kresen’s instruction. Additionally, defendant
       apparently was unable to comprehend and follow Kresen’s instructions for performing the
       one-leg-stand test because he asked Kresen to repeat the instructions and then refused to
       complete the one-leg-stand test or any other testing. Kresen testified that he was sure that
       defendant understood the brief and simple instructions for the one-leg-stand test, and when
       Kresen refused to repeat those instructions, defendant became visibly agitated. Kresen
       believed that defendant wanted to fight, and defendant calmed down only when backup
       officers arrived. Defendant apparently raised his voice, refused to perform any field sobriety
       tests, and stated, “just arrest me.” Defendant also refused to perform the breath test when he
       was at the police station. Based on all of these factors, we hold that there was sufficient

                                                    -7-
       evidence for a reasonable finder of fact to conclude beyond a reasonable doubt that defendant
       was under the influence of alcohol and, therefore, guilty of the offense of DUI.
¶ 29       Defendant argues that he was able to perform a number of tasks without any problem or
       indication of impairment. Because he was able to complete these tasks, defendant concludes
       that the remaining evidence was so undermined as to be insufficient to support a guilty verdict.
       We disagree. There is no question that defendant did not run into any barricades and was able
       to complete a right turn into traffic successfully. Additionally, defendant did not weave out of
       his lane while proceeding north on Main Street or cross either the center or fog line of the road.
       Defendant pulled his car to the side of the road without falling into the ditch or ending at an
       angle to the road. Defendant was able to exit his car unassisted, and he was not observed to
       stumble or otherwise lose his balance during the encounter. Defendant points specifically to
       these facts in concluding that the State’s evidence was insufficient to prove beyond a
       reasonable doubt that he was under the influence of alcohol. We note, however, that the State
       need not have proved that defendant was completely incapacitated by alcohol; rather, the State
       had to demonstrate that defendant was impaired by alcohol only to the extent that it rendered
       him incapable of driving safely. Id. ¶ 20. The fact that there is evidence supporting a
       defendant’s position does not render the evidence supporting a conviction insufficient. Id.
       Accordingly, although we recognize that the evidence was short of showing that defendant was
       completely incapacitated by alcohol, it was nevertheless sufficient to support his conviction of
       DUI beyond a reasonable doubt.
¶ 30       Defendant argues that People v. Barham, 337 Ill. App. 3d 1121 (2003), compels the
       conclusion that the evidence was insufficient to prove him guilty beyond a reasonable doubt. In
       Barham, the defendant had attended a political fundraiser for a state representative. Id. at 1124.
       After an hour, the defendant left and went, with friends, to a bar. Id. At the bar, the defendant
       consumed an undetermined number of alcoholic beverages, between two and nine. Id. There
       was no testimony that anyone in the defendant’s party was intoxicated or acting erratically. Id.
       at 1124-25. The defendant and his passenger left the bar between 10:30 p.m. and 11 p.m. Id. at
       1125.
¶ 31       At about midnight, the defendant’s car was found down an embankment, with the
       passenger side of the car wrapped around a tree. Id. The civilians who discovered the accident
       and who remained with the defendant at the site of the accident did not detect any odor of
       alcohol on the defendant’s breath; however, the paramedic who treated the defendant at the
       accident site and a responding police officer both noticed the smell of an alcoholic beverage on
       the defendant’s breath. Id. at 1125-26. The defendant, at least initially, was alert and
       responsive to the paramedic, who noticed that the defendant had head injuries. Id. at 1125.
       Upon the paramedic’s routine questioning, the defendant admitted that he had consumed
       alcohol, but he did not say how many drinks. Id. The defendant was transported to a hospital
       where, about two hours after the accident was discovered, his blood was drawn. Id. at 1126. At
       about 2:20 a.m., the defendant went into respiratory failure, was intubated, and was transferred
       to intensive care. Id. At about 3:30 a.m., the police officer tried to interview the defendant, but
       the defendant was unresponsive. Id. The police officer ordered an involuntary blood draw,
       which was taken at about 3:30 a.m. Id. The defendant’s passenger died from his injuries. Id. As
       is relevant here, the defendant was convicted of reckless homicide, causing the death of his
       passenger by operating a vehicle while he was under the influence of alcohol to such a degree
       that he was incapable of safely driving. Id.

                                                    -8-
¶ 32        In considering whether the State had proved that the defendant was intoxicated, the
       appellate court noted that there was evidence that the defendant had been drinking, but the
       quantity had not been established. Id. at 1131. The appellate court also emphasized that there
       was no evidence that the defendant appeared to be intoxicated or was behaving
       inappropriately; additionally, there was no evidence that the defendant was driving erratically,
       weaving through traffic, or unable to maintain his lane of travel. There also was no evidence
       that the defendant’s eyes were glassy or bloodshot or that his speech was slurred. Id. In short,
       the appellate court concluded that the evidence was insufficient to support a conviction where
       the only evidence was that the defendant consumed an unknown quantity of alcohol and there
       was no evidence demonstrating that the defendant’s physical and mental abilities were
       impaired by alcohol at the time of the accident. Id. at 1136.
¶ 33        Barham is distinguishable. Here, Kresen directly observed defendant drive through a
       barricaded portion of the roadway, leaving his lane and traveling in the oncoming lane before
       entering traffic on Main Street. Kresen also directly observed that defendant did not
       immediately pull over when Kresen activated his emergency lights but hesitated for as much as
       10 seconds. Kresen also detected a moderate odor of alcohol in the cabin of defendant’s car as
       well as on defendant’s breath once defendant had exited his car. Kresen testified that defendant
       initially appeared to be inexplicably confused, answering that he was both coming from and
       going to Wisconsin before claiming to be lost and unsure of where he was. Defendant was
       unable to follow simple instructions, such as keeping his hands out of his pockets (and there
       was testimony that the weather was cool, not cold; further defendant did not comment that his
       hands were cold and does not argue on appeal that he kept placing his hands in his pockets due
       to the coolness of the weather). Moreover, defendant became agitated and exclaimed, “just
       arrest me,” when Kresen refused to repeat the instructions for the one-leg-stand test. Kresen
       also testified that he was sure that defendant understood the instructions for that test in light of
       their simplicity and brevity and the fact that he demonstrated the test for defendant as he was
       giving the instructions.
¶ 34        In Barham, there was no evidence that the defendant exhibited any behaviors corroborative
       of alcohol impairment. Here, by contrast, defendant’s driving through a barricaded street,
       confusion, inability to follow directions, and agitation and combativeness were all behaviors
       consistent with and indicative of alcohol impairment. Thus, unlike in Barham, there was
       evidence to demonstrate that, at the time of the offense, defendant was impaired by alcohol to
       such a degree as to be incapable of driving safely.1
¶ 35        Defendant also contends that there was insufficient evidence of intoxication because no
       chemical testing was performed. This overlooks the fact that defendant refused to submit to
       any chemical testing, and this refusal could be used to infer defendant’s consciousness of his
       guilt of the offense charged. People v. Morris, 2014 IL App (1st) 130152, ¶ 20. The fact that
       defendant was under arrest when he refused the testing is of no moment: even if he could have
       been compelled to submit to a blood draw, the point is that defendant was asked to submit and
       he refused. His awareness that testing would show that he was above the legal limit was a valid
       inference to be drawn from this circumstance. Accordingly, we reject defendant’s argument


           1
             Defendant also specifically argues, based on Barham, that there was no evidence that his driving
       abilities were impaired. The same evidence that distinguished Barham serves to rebut this argument.

                                                     -9-
       that Barham compels the conclusion here that the evidence was insufficient to convict him
       beyond a reasonable doubt.
¶ 36       Next, relying on cases addressing motions to suppress, defendant argues that the evidence
       was insufficient to support a finding of probable cause and was therefore insufficient to
       support a conviction. Defendant’s contention is not without surface appeal. If the evidence was
       insufficient to establish probable cause as to defendant’s impairment, a much lower threshold
       than proof beyond a reasonable doubt, how can the same evidence be proof beyond a
       reasonable doubt? Defendant concludes that there was insufficient evidence to support
       probable cause, let alone proof beyond a reasonable doubt, because there was evidence only of
       a moderate odor of alcohol and no evidence concerning the amount of alcohol consumed,
       erratic driving, or other facts corroborative of impairment.
¶ 37       There are at least two problems with defendant’s argument. First, on a motion to suppress,
       the trial court’s factual determinations are reviewed to determine whether they are against the
       manifest weight of the evidence, while the ultimate determination is reviewed de novo. People
       v. Motzko, 2017 IL App (3d) 160154, ¶ 18. Thus, the trial court’s factual determinations on a
       motion to suppress are accorded significant deference; by contrast, here, the evidence is
       viewed in the light most favorable to the prosecution. In other words, the presumption in a
       sufficiency-of-the-evidence case favors the State; in a manifest-weight case, it favors the trial
       court’s factual determinations. Therefore, if the trial court determined facts that were
       insufficient, then the presumption favors that determination (and if the trial court determined
       facts that were sufficient, the presumption would favor that ruling). Thus, the differing
       standards of review make illogical defendant’s claim that if there is no probable cause, then the
       evidence cannot be sufficient to convict.
¶ 38       Second, defendant overlooks the evidence that supports his conviction while he
       contemplates only the evidence showing that he was not completely incapacitated by alcohol.
       We have acknowledged that defendant did not hit the barricades and drove within his lane
       when followed by Kresen. He also did not fumble when producing his driver’s license, and
       when he exited his car he did not stumble, sway, or lose his balance. This, however, is not all of
       the evidence. Kresen testified that defendant appeared to be confused, could not or would not
       follow directions, and was apparently unable to comprehend the instructions and
       demonstration he was given for the one-leg-stand test. Additionally, defendant became
       agitated and raised his voice, exclaiming, “just arrest me,” before refusing to attempt further
       field sobriety tests, and he refused all further forms of testing. Kresen did not testify that
       defendant was completely incapacitated, and if that had been the finding, the evidence would
       perhaps have been insufficient. Rather, defendant was found to be under the influence of
       alcohol to the extent that he could not safely operate his vehicle. Despite the tasks that
       defendant was able to perform, the evidence was sufficient to support this finding.
¶ 39       Defendant cites Motzko for the proposition that the odor of alcohol and inadequate
       performance on a field sobriety test were insufficient to support probable cause to believe that
       the defendant was driving under the influence. Id. ¶ 20. The problem with analogizing this case
       to Motzko, however, is the fact that the trial court there expressly determined that there was no
       evidence to corroborate a conclusion that the defendant was impaired by alcohol. Id. ¶¶ 20-25.
       Importantly, the trial court determined that the police officer was not credible. Id. ¶ 26. Thus,
       because the presumption ran in favor of the trial court’s factual determinations, the appellate
       court determined that there was no probable cause to arrest the defendant for driving under the

                                                   - 10 -
       influence of alcohol. Id. Here, Kresen was evidently determined to be credible; thus there was
       evidence supporting a determination that defendant was under the influence of alcohol to the
       extent that he was incapable of driving safely. Thus, Motzko is inapposite.
¶ 40       Similarly, defendant relies on People v. Day, 2016 IL App (3d) 150852, for the same
       proposition: the determination there that the facts were insufficient to support a probable-cause
       determination means that the facts here do not support defendant’s conviction. Once again, the
       court in Day held that the lack of corroboration was fatal to a probable-cause determination. Id.
       ¶¶ 37-38. Here, by contrast, there were corroborating facts, and the presumption runs opposite
       to that in Day. Day, therefore, does not much support defendant’s contention.
¶ 41       For the foregoing reasons, we hold that the evidence was sufficient to prove each element
       of the offense of aggravated DUI beyond a reasonable doubt. There was evidence showing
       that, when he was operating the vehicle, defendant was impaired by his alcohol consumption to
       the extent that he could not drive safely. This evidence included defendant’s confusion, his
       inability to follow directions, his inability to understand instructions and demonstrations, and
       his agitation and combativeness.

¶ 42                   B. Admission of the Portion of the Recording of the HGN Test
¶ 43        Defendant next contends that the trial court abused its discretion in admitting a portion of
       the recording of defendant taking the HGN test. Defendant argues that, because the State
       agreed that the HGN test was improperly conducted, the jury should have been precluded from
       seeing any footage of Kresen administering the test. The trial court, over defendant’s
       objections, admitted a portion of the recording because it showed defendant disobeying
       Kresen’s instructions to keep his hands at his sides and out of his pockets. Defendant contends
       that, under People v. McKown, 236 Ill. 2d 278, 306 (2010), the recording was completely
       inadmissible.
¶ 44        The admission of evidence is within the trial court’s sound discretion, and its decision will
       not be disturbed absent an abuse of that discretion. People v. Axtell, 2017 IL App (2d) 150518,
       ¶ 90. A trial court abuses its discretion when no reasonable person would take the view
       adopted by the trial court. Id.
¶ 45        In McKown, the supreme court held that, for the results of an HGN test to be admitted at
       trial, a proper foundation must be laid, including the officer’s proper training and
       administration of the test. McKown, 236 Ill. 2d at 306. The supreme court held that the
       administration of the HGN test in that case did not meet the standards that the court had
       enunciated, so the admission of any testimony concerning the test and its results was reversible
       error. Id. at 310-11. Here, defendant argues that, similarly, Kresen did not correctly perform
       the HGN test, so the admission of the recording was likewise erroneous, and that, given the
       closeness of the evidence, the error cannot be deemed harmless beyond a reasonable doubt.
¶ 46        Defendant’s argument is a lot to unpack. The primary difference between this case and
       McKown is the fact that defendant’s HGN test was memorialized on a video recording, so the
       jury was able to see defendant’s performance of a part of the test. In McKown, by contrast, the
       officer testified about the test and the conclusions he drew from the defendant’s performance.
       Here, Kresen did not testify at all about the test—either his administration of the test or
       defendant’s performance of the test; likewise, the State made absolutely no argument about the
       test. Thus, in this respect, McKown is significantly distinguishable. The question remains,


                                                   - 11 -
       however, whether the jury should have observed the portion of the recording admitted to
       illustrate defendant’s inability or refusal to comply with Kresen’s instructions.
¶ 47       We believe that the result in this case is governed by People v. King, 2014 IL App (2d)
       130461. In that case, the police officer improperly administered the HGN test, and the video of
       the test was published to the jury. Id. ¶¶ 4-8. However, the officer did not couch his testimony
       in terms of that test or testify that he had drawn any conclusions from the defendant’s
       performance of the test; rather, the officer testified that, during the conduct of the test, the
       defendant was unable to follow his instructions because the defendant turned his head, which
       was a factor in the officer’s conclusion that the defendant was under the influence of alcohol.
       Id.
¶ 48       On appeal, the defendant challenged the admission and publication to the jury of the video
       of the HGN test as well as the officer’s testimony about the conduct of the HGN test. Id. ¶ 9.
       This court observed:
                “[A]ccording to [the] defendant, [the officer’s] testimony did not satisfy the
                foundational requirements set forth in [McKown]. That might be true,
                but [McKown] cannot reasonably be understood to apply to the type of testimony at
                issue in this case. [The officer] never testified that he formed any opinions based [on]
                the movement of defendant’s eyes. Thus, it is of no moment that [the officer] might not
                have been properly trained—and might not have followed the proper procedures—to
                elicit eye movement indicative of the consumption of alcohol. [The officer] merely
                related an incidental observation while he administered the HGN test—that [the]
                defendant moved his head despite being instructed to keep it still. Nothing in
                the McKown decisions bars an officer from relating such observations, to the extent
                that they are independently relevant, and there is no sensible reason to link the
                admissibility of such evidence to the foundational requirements for the HGN test
                itself.” (Emphasis in original.) Id. ¶ 11.
¶ 49       We then held that “a motorist’s failure to follow directions on a particular field sobriety test
       does not lose all relevance simply because the test might not have been designed for the precise
       purpose of gauging the ability to follow directions.” Id. ¶ 12. Thus, we determined that our
       holding did not “imply that, where the State is aware that the HGN test was not conducted
       properly and, thus, that the results [were] inadmissible, the officer’s otherwise relevant and
       material observations [could] or should [have been] characterized as part of the administration
       of an HGN or other field sobriety test.” (Emphasis in original.) Id. ¶ 13.
¶ 50       The defendant in King also argued that, by offering an opinion as to the defendant’s
       impairment, the State violated the strictures of McKown. We rejected this contention, noting
       that the evidence showing that the defendant did not follow the officer’s instructions was
       separate and apart from any scientific evidence that would have been associated with the HGN
       test (and which neither the officer nor the State commented upon). Id. ¶ 14.
¶ 51       Here, the State conceded that the HGN test was improperly conducted. Unlike in King,
       Kresen did not even mention the HGN test; rather, he testified that defendant did not follow his
       instructions, and the portion of the recording of the HGN test admitted and published to the
       jury illustrated defendant’s failure to follow those instructions. Moreover, the State did not
       mention or make any argument regarding the HGN test; rather, the State focused solely on
       defendant’s inability to follow Kresen’s instructions during the portion of the recording that
       was published to the jury. This was proper under King (id. ¶¶ 13-14), and it did not violate the

                                                    - 12 -
       requirements of McKown because the admitted portion of the recording and all of the
       testimony and argument dealt only with defendant’s failure to follow instructions and there
       was no mention whatsoever of the HGN test. Accordingly, we hold that the portion of the
       recording containing a part of the administration of the HGN test was properly admitted and
       published to the jury.

¶ 52                         C. Rebuttal Closing Argument and Burden Shifting
¶ 53       Defendant next argues that the State improperly shifted the burden of proof in its rebuttal
       closing argument when the prosecutor asked, “if he wasn’t under the influence, why didn’t [he]
       take that simple test. If he wasn’t guilty, why did he refuse field sobriety testing?” Defendant
       argues that these two questions undermined defendant’s presumption of innocence and shifted
       the burden of proof. We disagree.
¶ 54       A closer inspection of the State’s rebuttal closing argument reveals that the prosecutor
       asked three rhetorical questions. The first time, the following colloquy occurred:
                   “That’s why they have these DUI evaluations, that’s why they send these officers to
               training, because somebody’s not going to simply state ‘I’m a drunken mess, arrest
               me.’ Oh, wait a minute, he did say ‘go ahead and arrest me.’ That’s consciousness of
               guilt.
                   Don’t be blinded by the defense attorney saying he was able to do this, he was able
               to do that. He didn’t show a sign here, he didn’t show a sign there. Don’t be blinded to
               the signs that he did show, the obvious signs. We don’t know how he would have done
               on the physical portion of those field sobriety tests, we don’t know what his breath
               alcohol level was, because he refused to do those things. That’s called consciousness of
               guilt. If he wasn’t guilty, why didn’t he take the test—
                   [DEFENSE COUNSEL]: Objection, Judge, burden shifting.
                   THE COURT: Overruled.
                   [THE STATE]: That’s called consciousness of guilt.”
¶ 55       The next two rhetorical questions occurred later in the rebuttal closing argument:
                   “There is one more decision, though, that you heard about, a decision that’s
               absolutely telling about his consciousness of guilt and that you can infer his
               consciousness of guilt from, and that’s that he refused a breath test at the station.
               Remember in your deliberations and use that as one of the factors that you use in
               finding the defendant guilty. Again, if he wasn’t under the influence, why didn’t [he]
               take that simple test? If he wasn’t guilty, why did he refuse field sobriety testing? He
               didn’t take that test because he was impaired. When you drink and drive to the point
               where you’re going around barricades, driving into oncoming lanes, have no idea
               where you are, can’t follow simple instructions, yell at an officer, refuse field sobriety
               testing, tell an officer ‘just arrest me’ and refuse a breath test, you combine all those
               factors, you’re driving under the influence of alcohol and that’s a crime in this state.”
       The defense attorney did not object to this second set of remarks.
¶ 56       Defendant argues that he objected to the second and third rhetorical questions, but the
       record shows clearly that he did not. Rather, defendant objected only to the first rhetorical
       question. The failure to make a contemporaneous objection in the trial court forfeits a claim of
       error, even if a similar objection was made earlier to a similar comment. People v. Anaya, 2017

                                                   - 13 -
       IL App (1st) 150074, ¶ 81. Thus, defendant has forfeited his argument with respect to the
       questions, “Again, if he wasn’t under the influence, why didn’t [he] take that simple test? If he
       wasn’t guilty, why did he refuse field sobriety testing?”
¶ 57       Additionally, defendant does not argue that we should apply a plain-error analysis to
       consider the second and third questions. The burden is on a defendant to establish plain error; if
       a defendant does not argue for a plain-error analysis, then the defendant forfeits any plain-error
       contention. People v. Olaska, 2017 IL App (2d) 150567, ¶ 133. Therefore, defendant here has
       forfeited any consideration of the second and third questions. Id.
¶ 58       Turning to the first rhetorical question, defendant made a contemporaneous objection and
       raised the issue in his posttrial motion, thereby preserving the issue for our review. The
       standard of review for improper closing arguments appears to be unsettled. People v. Legore,
       2013 IL App (2d) 111038, ¶ 48. On the one hand, People v. Wheeler, 226 Ill. 2d 92, 121
       (2007), held that whether a prosecutor’s remarks were so egregious as to warrant a new trial
       presented a legal question, subject to de novo review. On the other hand, Wheeler cited with
       approval and relied on People v. Blue, 189 Ill. 2d 99, 128 (2000), which applied the
       abuse-of-discretion standard to the same issue. Where the standard of review does not affect
       the outcome of the issue, courts have noted that fact and proceeded to address the issue without
       attempting to settle the standard in the absence of a clear directive from our supreme court.
       People v. Burman, 2013 IL App (2d) 110807, ¶ 26. Here, the result is the same under either the
       de novo standard or the abuse-of-discretion standard.
¶ 59       Prosecutors are given wide latitude in closing argument. Wheeler, 226 Ill. 2d at 123. The
       issue with improper remarks is whether they engendered substantial prejudice to the defendant
       such that it is impossible to say whether the remarks resulted in a guilty verdict. Id. The fact
       that an objection to certain remarks has been forfeited does not mean that we excise the
       forfeited remarks from our consideration; rather, we consider all of the closing arguments,
       including the context that can be supplied by the forfeited remarks. Id. at 122-23.
¶ 60       Again, in the properly preserved first instance, the prosecutor stated:
                   “That’s why they have these DUI evaluations, that’s why they send these officers to
               training, because somebody’s not going to simply state ‘I’m a drunken mess, arrest
               me.’ Oh, wait a minute, he did say ‘go ahead and arrest me.’ That’s consciousness of
               guilt.
                   Don’t be blinded by the defense attorney saying he was able to do this, he was able
               to do that. He didn’t show a sign here, he didn’t show a sign there. Don’t be blinded to
               the signs that he did show, the obvious signs. We don’t know how he would have done
               on the physical portion of those field sobriety tests, we don’t know what his breath
               alcohol level was, because he refused to do those things. That’s called consciousness of
               guilt. If he wasn’t guilty, why didn’t he take the test—”
¶ 61       As we have observed, a defendant’s refusal to submit to chemical testing evidences a
       consciousness of guilt. Morris, 2014 IL App (1st) 130152, ¶ 20. In argument, a prosecutor may
       comment on a defendant’s consciousness of guilt, but the prosecutor must be careful not to
       cross the line and blur the distinction between the defendant’s consciousness of guilt and
       requiring the defendant to prove his or her innocence. People v. Johnson, 218 Ill. 2d 125, 140
       (2005) (condoning argument that the refusal of chemical testing in a DUI case shows
       consciousness of guilt but cautioning that an argument that the defendant could have proved
       himself or herself innocent is reversible error because it undermines the presumption of

                                                   - 14 -
       innocence and violates the principle that the defendant is not required to prove anything in a
       criminal prosecution). The line appears to be fairly solidly drawn between comments that a
       defendant refused testing because the defendant was conscious that the test results would
       reveal his or her guilt (People v. Graves, 2012 IL App (4th) 110536, ¶ 45 (“a prosecutor may
       argue that a defendant’s refusal to submit to chemical testing shows consciousness of guilt”))
       and comments that the defendant could have proved his or her innocence had he or she
       submitted to testing (Johnson, 218 Ill. 2d at 140 (remarks suggesting that the defendant failed
       to prove his innocence to the police officer by failing to take the breath test were improper)).
¶ 62       The comments in this case fall on the proper side of the line. Here, the prosecutor expressly
       linked his rhetorical question to the concept of consciousness of guilt, and this has been
       approved even in cases, such as Johnson, where the comments at issue were determined to
       have crossed the line. See also Graves, 2012 IL App (4th) 110536, ¶ 45 (“a prosecutor may
       argue that a defendant’s refusal to submit to chemical testing shows consciousness of guilt”).
       The clear import of the prosecutor’s argument was that defendant was aware that he was
       driving while he was impaired by his consumption of alcohol. We see no other reasonable way
       to interpret the prosecutor’s remarks.
¶ 63       Defendant argues that the prosecutor’s use of the term “guilty” or “guilt” suggested that
       defendant was required to prove his own innocence by submitting to the proposed testing. We
       disagree. The prosecutor argued: “We don’t know how he would have done on the physical
       portion of those field sobriety tests, we don’t know what his breath alcohol level was, because
       he refused to do those things. That’s called consciousness of guilt. If he wasn’t guilty, why
       didn’t he take the test—” We can certainly see how the statement, “If he wasn’t guilty, why
       didn’t he take the test,” in isolation, could be misunderstood as a comment that the defendant
       needed to prove that he was not guilty. A cleaner practice would have been for the prosecutor
       to pose and answer the question in terms of consciousness of guilt, carefully avoiding the term
       “guilty.” With that observation made, we still cannot say that, in the quoted comment, the
       prosecutor was suggesting that defendant was required to prove his innocence or even that he
       could have proved his innocence by taking the test. Rather, the prosecutor was expressly
       saying that defendant refused testing because he was aware that the testing would reveal that he
       was impaired by his alcohol consumption: defendant was conscious that the testing would
       show his guilt. Because “consciousness of guilt” is a permitted argument and the prosecutor
       was expressly arguing that defendant’s refusal was based on his consciousness of his guilt, we
       reject defendant’s contention that the words “guilty” and “guilt” should be forbidden terms in
       prosecutorial argument. Indeed, in People v. James, 2017 IL App (1st) 143036, ¶ 17, the
       prosecutor argued that the defendant’s flight showed his “ ‘consciousness of guilt.’ ” The court
       held that the State was able to make that argument to the jury. Id. ¶ 49.
¶ 64       In addition, we note that the same analysis applies to the forfeited instances identified
       above. Even had they not been forfeited by defendant’s failure to object to them, the comments
       were plainly directed at defendant’s consciousness of guilt and were therefore not erroneous.
       Thus, we conclude that the prosecutor’s argument advanced here, in both the preserved and the
       forfeited comments, was proper.

¶ 65                                   D. Double Enhancement
¶ 66       Defendant last argues that the trial court applied an improper double enhancement in
       sentencing him to an eight-year term of imprisonment. Specifically, defendant contends that

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       the trial court improperly used his previous convictions of DUI both for his eligibility for a
       Class X sentence and as aggravating factors to justify the eight-year sentence.
¶ 67       The State argues that defendant forfeited this contention because he did not file a motion to
       reconsider the sentence. Defendant concedes that he did not file such a motion, thereby
       forfeiting this contention, but he asks that the rule of forfeiture be relaxed because the trial
       court did not properly admonish him about his rights pursuant to Illinois Supreme Court Rule
       605(a)(3) (eff. Oct. 1, 2001).
¶ 68       The trial court gave defendant the following admonitions:
                   “Sir, you have the right to appeal this sentence. Before you could do that, you’d
               have to file with the Court within 30 days from today’s date a notice of appeal. Or if
               you wish to choose to only challenge the sentence that was imposed today, you have 30
               days from today’s date to file a motion asking the Court to reconsider your sentence.
               You would then have 30 days from the date that the Court rules on that motion to file a
               notice of appeal.
                   You are entitled to legal representation. If you were indigent and could not afford to
               hire a lawyer one would be appointed for you by the Court without cost to you to assist
               you in any motions and to assist you on appeal.
                   Also a copy of all pertinent transcripts would be made available to you without
               cost.
                   Any issues or claims of error not set forth in your motion would be deemed waived
               for purposes of appeal.”
¶ 69       Rule 605(a)(3) requires that the following admonitions be given:
               “[T]he trial court shall also advise the defendant as follows:
                        A. that the right to appeal the judgment of conviction, excluding the sentence
                   imposed or modified, will be preserved only if a notice of appeal is filed in the trial
                   court within thirty (30) days from the date on which sentence is imposed;
                        B. that prior to taking an appeal, if the defendant seeks to challenge the
                   correctness of the sentence, or any aspect of the sentencing hearing, the defendant
                   must file in the trial court within 30 days of the date on which sentence is imposed a
                   written motion asking to have the trial court reconsider the sentence imposed, or
                   consider any challenges to the sentencing hearing, setting forth in the motion all
                   issues or claims of error regarding the sentence imposed or the sentencing hearing;
                        C. that any issue or claim of error regarding the sentence imposed or any aspect
                   of the sentencing hearing not raised in the written motion shall be deemed waived;
                   and
                        D. that in order to preserve the right to appeal following the disposition of the
                   motion to reconsider sentence, or any challenges regarding the sentencing hearing,
                   the defendant must file a notice of appeal in the trial court within 30 days from the
                   entry of the order disposing of the defendant’s motion to reconsider sentence or
                   order disposing of any challenges to the sentencing hearing.” Ill. S. Ct. R. 605(a)(3)
                   (eff. Oct. 1, 2001).
¶ 70       The trial court’s admonitions to defendant included admonitions about the right to appeal
       and the time frame in which to perfect the appeal. See Ill. S. Ct. R. 605(a)(3)(A), (D) (eff. Oct.
       1, 2001). They included that he had 30 days to file a motion to reconsider the sentence. See Ill.

                                                   - 16 -
       S. Ct. R. 605(a)(3)(B) (eff. Oct. 1, 2001). They also included that any issues or claims of error
       not raised in the motion to reconsider would be forfeited for purposes of appeal. See Ill. S. Ct.
       R. 605(a)(3)(C) (eff. Oct. 1, 2001). Thus, we conclude that the trial court’s admonitions
       covered all of the points required by Rule 605(a)(3).
¶ 71        Defendant argues that the admonitions included extraneous information and were not
       presented in the same order and the same language used in Rule 605(a)(3). This is true.
       However, only substantial compliance is necessary for Rule 605(a) admonitions. People v.
       Henderson, 217 Ill. 2d 449, 462-63 (2005). We hold that, because each of the required
       admonitions was given to defendant, even if the language did not exactly track the rule, the
       trial court substantially complied with the admonition requirements of Rule 605(a). Because
       the trial court substantially complied with Rule 605(a), defendant was fully apprised of his
       rights and obligations to preserve his ability to challenge any claimed sentencing errors on
       appeal. Thus, we need not and do not relax the rule of forfeiture applicable to defendant in this
       case. Accordingly, we hold that defendant has forfeited his double-enhancement claim on
       appeal because he did not preserve the issue by filing a motion to reconsider the sentence.
¶ 72        Forfeiture aside, there is no merit to defendant’s contention. It has long been established
       that the fact of a defendant’s prior convictions may determine his or her eligibility for a Class
       X sentence, but in determining the length of the defendant’s sentence, the trial court remains
       free to consider the nature and circumstances of those prior convictions along with all of the
       other factors in mitigation and aggravation. People v. Thomas, 171 Ill. 2d 207, 227-28 (1996).
       For example, in People v. Morrow, 2014 IL App (2d) 130718, ¶¶ 19-20, the trial court properly
       considered the defendant’s previous DUI convictions, not only for the defendant’s eligibility
       for a Class X sentence, but also as evidence of aggravating circumstances, including
       recidivism and failure to rehabilitate, justifying the length of the defendant’s sentence. Here,
       the trial court considered that defendant had not only the five DUI convictions necessary to
       qualify for Class X sentencing but also four additional DUI convictions (nine in total) in
       imposing a sentence of eight years—two years above the minimum sentence. Although the
       trial court was terse in its explanation, the nine convictions illustrated defendant’s recidivism,
       his failure to rehabilitate, and the significant possibility of harm each and every time defendant
       got behind the wheel while under the influence of alcohol. We note that the trial court’s
       discussion with defendant following his statement in allocution touched on these factors, and
       we consider the sentencing hearing as a whole. Id. ¶ 14 (“In determining whether the trial court
       based the sentence on proper aggravating and mitigating factors, a court of review should
       consider the record as a whole, rather than focusing on a few words or statements by the trial
       court.” (Internal quotation marks omitted.)). Accordingly, defendant’s double-enhancement
       claim is without merit.

¶ 73                                      III. CONCLUSION
¶ 74       For the foregoing reasons, the judgment of the circuit court of McHenry County is
       affirmed. As part of our judgment, we grant the State’s request that defendant be assessed the
       state’s attorney fee of $50 pursuant to section 4-2002(a) of the Counties Code (55 ILCS
       5/4-2002(a) (West 2016)) for the cost of this appeal. See People v. Nicholls, 71 Ill. 2d 166, 178
       (1978).

¶ 75      Affirmed.

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