                                                                                       FILED

                                    2018 IL App (4th) 160107                          August 6, 2018
                                                                                       Carla Bender
                                          NO. 4-16-0107                            4th District Appellate
                                                                                         Court, IL
                                  IN THE APPELLATE COURT

                                           OF ILLINOIS

                                       FOURTH DISTRICT

 THE PEOPLE OF THE STATE OF ILLINOIS,                        )   Appeal from the
            Plaintiff-Appellee,                              )   Circuit Court of
            v.                                               )   Vermilion County
 JASON MARZONIE,                                             )   No. 14CF167
            Defendant-Appellant.                             )
                                                             )   Honorable
                                                             )   Nancy S. Fahey,
                                                             )   Judge Presiding


               JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
               Justices Holder White and Turner concurred in the judgment and opinion.

                                            OPINION

¶1             In April 2014, the State charged defendant with (count I) participating in the

manufacture of more than 400 grams but less than 900 grams of methamphetamine; (count II)

possessing more than 400 grams but less than 900 grams of methamphetamine; (count III) pos­

sessing, transporting, or storing a methamphetamine precursor in any form other than a standard

dosage form with the intent that less than 10 grams of methamphetamine or a substance contain­

ing methamphetamine be manufactured; and (count IV) possessing, transporting, or storing

methamphetamine manufacturing material with the intent that it be used to manufacture meth­

amphetamine. 720 ILCS 646/15(a)(2)(D), 60(b)(5), 20(b)(2)(A), 30(b) (West 2014).

¶2             In October 2015, the jury found defendant guilty on all counts. In January 2016,

the trial court sentenced defendant and assessed various fines and fees against him. The circuit

clerk later assessed new fines and fees that the court did not authorize.
¶3             Defendant appeals, arguing (1) his convictions violate the one-act, one-crime doc­

trine, (2) the prosecutor committed reversible error during closing argument, and (3) the addi­

tional fines imposed by the circuit clerk must be vacated. We disagree and affirm.

¶4                                     I. BACKGROUND

¶5                                     A. The Information

¶6             In April 2014, the State arrested defendant after the police found methampheta­

mine, methamphetamine precursor, and other materials in his abandoned vehicle. Later that

month, the State charged defendant with (count I) participating in the manufacture of more than

400 grams but less than 900 grams of methamphetamine; (count II) possessing more than 400

grams but less than 900 grams of methamphetamine; (count III) possessing, transporting, or stor­

ing a methamphetamine precursor in any form other than a standard dosage form with the intent

that less than 10 grams of methamphetamine or a substance containing methamphetamine be

manufactured; and (count IV) possessing, transporting, or storing methamphetamine manufactur­

ing material with the intent that it be used to manufacture methamphetamine. 720 ILCS

646/15(a)(2)(D), 60(b)(5), 20(b)(2)(A), 30(b) (West 2014).

¶7                                      B. The Jury Trial

¶8             In October 2015, defendant’s case proceeded to a jury trial.

¶9                                   1. The State’s Evidence

¶ 10           Clayton Woodard, a trooper with the Illinois State Police, testified that on April

16, 2014, at 6:15 a.m., he went to a traffic accident in Vermilion County. He found at the scene a

damaged construction sign and a vehicle’s license plate lying on the side of the road. Woodard

stated that he then located an unoccupied Jeep Cherokee approximately three blocks away. It had

obvious signs of damage, and its rear license plate matched the license plate he found at the sce­



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ne of the accident. Woodard testified that (1) he observed items commonly used for manufactur­

ing methamphetamine inside the vehicle and (2) defendant was the registered owner of the vehi­

cle.

¶ 11            Troy Davis, an Illinois State Police trooper, testified that he processed the items

found inside the vehicle that were suspected of being used for methamphetamine manufacturing,

which included the inner parts of lithium batteries, starting fluid, a garden hose with reinforced

tubing, a modified air tank, and coffee filters. Davis stated that a substance weighing 777.8

grams located inside the vehicle field-tested positive for methamphetamine. Davis stated that the

police took a 30-milliliter sample of the substance. Davis noted that a white powder found in the

vehicle field-tested positive for pseudoephedrine, which is a precursor of methamphetamine. A

chemist at the Illinois State Police crime lab later testified that the 30-milliliter sample tested

positive for methamphetamine and that the white powder tested positive for pseudoephedrine.

¶ 12            Eric Millis, an evidence custodian for the Vermilion County Metropolitan En­

forcement Group (VMEG), testified that he searched the vehicle after the Illinois State Police

removed the suspected drugs and found (1) defendant’s driver’s license, (2) defendant’s check­

book, (3) an electric bill and other mail addressed to defendant, and (4) receipts for

pseudoephedrine-based cold pills.

¶ 13            Pat Alblinger, a deputy with the Vermilion County Sheriff’s Office, testified that

he went to the accident scene on April 16, 2014, and was later dispatched to a residence in Dan­

ville. Alblinger testified that Erica Bennett and Jesse Harper were at that residence but defendant

was not.

¶ 14            Erica Bennett testified that she received a phone call from Harper on the early

morning of April 16, 2014. After the phone call, Bennett directed Randy Huskey to go and pick



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up Harper. Huskey picked up Harper, defendant, and a third person and brought them back to

Bennett’s home in Danville. Bennett testified that all three people were panicking when they ar­

rived at her house and that defendant left about 20 minutes later. She noted that defendant was

already gone when the police arrived at her home. On cross-examination, Bennett admitted fre­

quent drug use during April 2014. She further conceded that she used to be friends with Harper

and that Harper used to supply her with methamphetamine. She also conceded that, on the date in

question, she originally told the police that Harper was not at her residence. She also admitted

that she had pleaded guilty and was on probation in an unrelated methamphetamine case.

¶ 15           Jeremiah Christian, a police officer for the City of Champaign, testified that he

located defendant on April 16, 2014, at approximately 4 p.m. Christian testified that defendant,

upon opening the door of his residence, spontaneously stated that the police must be here for his

missing vehicle. Christian took defendant into custody for questioning.

¶ 16           Benjamin Striger, a police officer for the City of Danville, stated that he used the

National Precursor Log Exchange (NPLE) to determine who had purchased the cold pills con­

taining pseudoephedrine. Striger noted that the NPLE is a database that logs the purchase of

pseudoephedrine-based cold pills and that individuals must sign for and present a valid photo ID

to purchase such pills. Striger stated that four receipts for pseudoephedrine-based cold pills were

found in defendant’s vehicle. Based on the NPLE database, Striger testified that defendant had

purchased pseudoephedrine-based cold pills four times during March and April 2014. He further

testified that according to the NPLE database, Harper had not purchased pseudoephedrine-based

cold pills since August 2011.

¶ 17                                      2. The Defense

¶ 18           Following the State’s case-in-chief, defendant moved for a directed verdict, which



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the trial court denied. Defendant declined to testify or present any other evidence.

¶ 19                                   C. Closing Arguments

¶ 20            The State argued that, based upon the physical evidence and Bennett’s testimony,

it had proved defendant guilty beyond a reasonable doubt. In response, defendant conceded that

the police found methamphetamine and other related materials in his vehicle but maintained that

the State failed to prove him guilty beyond a reasonable doubt. Defendant argued that Harper

could have been solely responsible for all of the criminal activity, rhetorically asking the jury,

“Who is Jesse Harper? Where is Jesse Harper?”

¶ 21            The State objected, and at a sidebar conference outside the presence of the jury,

the State asked to inform the jury that Harper had already pleaded guilty to methamphetamine

manufacturing and other crimes arising from the same incident. Defendant argued “the State

could have subpoenaed Jesse Harper. *** It’s not our burden to establish where Jesse Harper is.

We were rightfully pointing out a hole in the State’s case.” The State responded that defendant

opened the door to informing the jury that Harper pleaded guilty to crimes arising from the same

incident. Over defendant’s objection, the trial court gave the State permission to disclose that

Harper pleaded guilty to methamphetamine-related offenses arising out of the same incident.

¶ 22            Following the trial court’s ruling, defense counsel argued that “Jesse Harper

pleaded guilty to this offense. The secret is out. It was Jesse Harper.” Defendant argued that

Harper could have used defendant’s photo ID to purchase pseudoephedrine-based cold pills.

Moreover, defendant argued that Harper could have been solely responsible for the methamphet­

amine manufacturing. Defendant further argued that Bennett falsely implicated him to protect

Harper. Defendant also attacked Bennett’s credibility based on her prior drug use and for being

on probation.



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¶ 23           In rebuttal, the State argued that it had proved defendant guilty beyond a reasona­

ble doubt based on the evidence found in defendant’s vehicle, the evidence connecting defendant

to the purchase of pseudoephedrine-based cold pills, and Bennett’s testimony placing defendant

at the scene of the crime. The State further argued that “Jesse Harper *** plead [sic] guilty to

this offense, and he plead [sic] guilty to this offense because primarily [sic] of Erica Bennett’s

statements that day.” The State further argued that Bennett’s plea deal “had nothing to do with

this case. She testified she wasn’t promised anything, that this case had nothing to do with her

case. You take that as the truth. There is no evidence stating otherwise, and believe me, if there

was, you would hear about it.”

¶ 24                          D. The Guilty Verdict and Sentencing

¶ 25           In October 2015, the jury found defendant guilty on all counts. In January 2016,

the trial court sentenced defendant to 20 years in prison on count I, 20 years on count II, 7 years

on count III, and 7 years on count IV. The court ordered that all sentences run concurrently. The

court also assessed a $100 VMEG fee, $3000 methamphetamine assessment fee, a $1000 fine, a

$100 crime lab fee, and court costs. The circuit clerk later assessed various fines and fees against

defendant that the court did not authorize.

¶ 26           This appeal followed.

¶ 27                                      II. ANALYSIS

¶ 28           Defendant appeals, arguing (1) his convictions violate the one-act, one-crime doc­

trine, (2) the prosecutor committed reversible error during closing argument, and (3) the addi­

tional fines imposed by the circuit clerk must be vacated. We disagree and affirm.

¶ 29                          A. The One-Act, One-Crime Doctrine

¶ 30           In this case, defendant was charged with and convicted of count I, participating in



                                                -6­
the manufacture of more than 400 grams but less than 900 grams of methamphetamine; count II,

possessing more than 400 grams but less than 900 grams of methamphetamine; count III, pos­

sessing, transporting, or storing a methamphetamine precursor in any form other than a standard

dosage form with the intent that less than 10 grams of methamphetamine or a substance contain­

ing methamphetamine be manufactured; and count IV, possessing, transporting, or storing meth­

amphetamine manufacturing material with the intent that it be used to manufacture methamphet­

amine. 720 ILCS 646/15(a)(2)(D), 60(b)(5), 20(b)(2)(A), 30(b) (West 2014).

¶ 31           On appeal, defendant argues that “[b]ecause all offenses include the same physi­

cal act—operating a mobile methamphetamine lab on the same day—counts II, III, and IV were

included within count I, and these convictions and their sentences should therefore be vacated.”

Alternatively, defendant argues that possessing methamphetamine is a lesser-included offense of

participating in the manufacture of methamphetamine. Compare 720 ILCS 646/60(b)(5) (West

2014), with id. § 15(a)(2)(D). We reject both arguments.

¶ 32                                  1. The Applicable Law

¶ 33           Under the one-act, one-crime doctrine, a defendant cannot be convicted of multi­

ple offenses “carved from the same physical act.” People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d

838, 844 (1977). The application of this doctrine is a question of law reviewed de novo. People

v. Johnson, 237 Ill. 2d 81, 97, 927 N.E.2d 1179, 1189 (2010). 


¶ 34           The one-act, one-crime doctrine involves a two-step process. People v. Coats, 


2018 IL 121926, ¶ 12. First, a reviewing court determines whether the defendant’s conduct in­

volved multiple acts or a single act. People v. Miller, 238 Ill. 2d 161, 165, 938 N.E.2d 498, 501 


(2010). Multiple convictions for the same act are improper. Id. In this context, the definition of


an “ ‘act’ ” is “ ‘any overt or outward manifestation which will support a different offense.’ ”




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In re Rodney S., 402 Ill. App. 3d 272, 282, 932 N.E.2d 588, 597 (2010) (quoting King, 66 Ill. 2d

at 566). Multiple convictions are permitted when a defendant has committed separate acts, de­

spite the interrelationship of those acts. People v. Poe, 385 Ill. App. 3d 763, 766, 896 N.E.2d

453, 456 (2008). Likewise, a defendant can be convicted of two offenses even when a common

act is a part of both offenses. People v. Williams, 384 Ill. App. 3d 327, 339, 892 N.E.2d 620, 631

(2008). Two or more separate acts do not become one act merely because of proximity of time

and location. People v. Pearson, 331 Ill. App. 3d 312, 322, 770 N.E.2d 1183, 1193 (2002).

¶ 35           Second, if the conduct involved multiple acts, the reviewing court must determine

whether any of the offenses at issue are lesser-included offenses. Miller, 238 Ill. 2d at 165. If an

offense is a lesser-included offense, multiple convictions are improper. Id.

¶ 36           The abstract-elements approach is the proper method to determine whether one

offense is a lesser-included offense of a greater offense. Id. at 174-75. Under this approach, a

comparison is made of the elements of the two offenses. Id. at 166. “If all of the elements of one

offense are included within a second offense and the first offense contains no element not in­

cluded in the second offense, the first offense is deemed a lesser-included offense of the second.”

Id. In other words, in order to be a lesser-included offense, it must be impossible to commit the

greater offense without necessarily committing the lesser offense. Id.

¶ 37           In People v. Bush, 2015 IL App (5th) 130224, ¶ 3, 37 N.E.3d 903, the defendant

was found in possession of pseudoephedrine, lithium batteries, “Heet” (isopropyl alcohol), and

cold packs. The defendant was charged with and convicted of (1) unlawful possession of meth­

amphetamine precursor (720 ILCS 646/20(a)(1) (West 2012)) and (2) unlawful possession of

methamphetamine-manufacturing materials (720 ILCS 646/30(a) (West 2012)). Bush, 2015 IL

App (5th) 130224, ¶ 3. On appeal, the defendant argued that his convictions violated the one-act,



                                                -8­
one-crime doctrine. Id. ¶ 5. The Fifth District noted that the “defendant possessed two separate

items: (1) methamphetamine precursor (pseudoephedrine), and (2) methamphetamine­

manufacturing materials (lithium batteries, “Heet,” and cold packs).” Id.¶ 11. The court then

concluded that “[w]hile the acts of possession committed by defendant in the instant case are

closely related, under the statutory scheme implemented by our General Assembly pursuant to

the [Methamphetamine Control and Community Protection Act (Act) (720 ILCS 646/1 et seq.

(West 2014))], they are separate and distinct acts.” Bush, 2015 IL App (5th) 130224, ¶ 12. Like­

wise, the court concluded that “[t]his is not a case where one offense could be considered a less-

er-included offense, as methamphetamine precursor and methamphetamine-manufacturing mate­

rials are separate and distinct items under the Act.” Id. ¶ 11. Accordingly, the court concluded

that the defendant’s convictions for unlawful possession of methamphetamine precursor and un­

lawful possession of methamphetamine-manufacturing materials did not violate the one-act, one-

crime doctrine. Id. ¶¶ 11-12.

¶ 38                            2. Defendant Committed Multiple Acts

¶ 39           Defendant’s convictions are not based upon precisely the same physical act.

Coats, 2018 IL 121926, ¶ 11. Count I dealt with participation in the manufacture of metham­

phetamine. 720 ILCS 646/15(a)(2)(D) (West 2014). Count II concerned possession of metham­

phetamine. Id. § 60(b)(5). Count III dealt with possession, transportation, or storage of metham­

phetamine precursor. Id. § 20(b)(1). Finally, count IV concerned the possession, transportation,

or storage of methamphetamine manufacturing material. Id. § 30(a). Although the acts commit­

ted by defendant were closely related, we conclude that “under the statutory scheme implement­

ed by [the legislature], they are separate and distinct acts.” Bush, 2015 IL App (5th) 130224,

¶ 12.



                                                -9­
¶ 40           Defendant is incorrect when he argues that he only committed one act of “operat­

ing a mobile methamphetamine lab.” Defendant attempts to merge distinct acts merely because

they occurred at the same time and place. However, separate acts do not become one act merely

because of proximity in time and location. Pearson, 331 Ill. App. 3d at 322. Rather, participat­

ing, transporting, storing, and possessing are each separate acts. See id. at 321-22. Moreover, the

interrelationship of separate acts does not prevent multiple convictions. Poe, 385 Ill. App. 3d at

766. Accordingly, within the meaning of the one-act, one-crime doctrine, defendant committed

separate acts. See Bush, 2015 IL App (5th) 130224, ¶ 12.

¶ 41                          3. There Is No Lesser Included Crime

¶ 42           Possession of methamphetamine is not a lesser-included offense of participating

in the manufacture of methamphetamine. The Act states that “It is unlawful knowingly to pos­

sess methamphetamine or a substance containing methamphetamine.” (Emphasis added.) 720

ILCS 646/60(a) (West 2014). Generally, in drug cases, the element of possession requires the

defendant’s knowledge of the presence of the illicit substance and his immediate and exclusive

control over it. People v. Scott, 2012 IL App (4th) 100304, ¶ 19, 966 N.E.2d 340. In contrast, the

Act defines “participation” as follows:

                       “ ‘Participate’ or ‘participation’ in the manufacture of methamphetamine

               means to produce, prepare, compound, convert, process, synthesize, concentrate,

               purify, separate, extract, or package any methamphetamine, methamphetamine

               precursor, methamphetamine manufacturing catalyst, methamphetamine manufac­

               turing reagent, methamphetamine manufacturing solvent, or any substance con­

               taining any of the foregoing, or to assist in any of these actions, or to attempt to

               take any of these actions, regardless of whether this action or these actions result



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               in the production of finished methamphetamine.” (Emphasis added). 720 ILCS

               646/10 (West 2014).

¶ 43            Under the plain language of the Act, one can be guilty of participating in the

manufacture of methamphetamine merely by assisting in the production of methamphetamine.

This assistance could occur in many forms such as (1) supplying the raw materials to manufac­

ture methamphetamine; (2) providing the knowledge, equipment, or capital to manufacture

methamphetamine; or (3) consenting to the manufacture of methamphetamine on your property.

An individual who assists in this capacity could be guilty of participation in methamphetamine

manufacturing without ever possessing methamphetamine or a substance containing metham­

phetamine. Id. § 15(a)(1). Possession, by contrast, requires knowing possession of methamphet­

amine or a substance containing methamphetamine. Id. §§ 60(a), 20(b)(1), 30(a). Accordingly,

methamphetamine possession is not a lesser-included offense of methamphetamine manufactur­

ing because both crimes contain different elements and it is possible to commit the greater of­

fense without necessarily committing the lesser offense. Miller, 238 Ill. 2d at 166.

¶ 44                               B. Prosecutorial Misconduct

¶ 45           Defendant also argues that the prosecutor committed reversible error when he im­

properly bolstered Bennett’s testimony and argued facts not in evidence. Defendant concedes

that he forfeited this argument but argues he can prevail under the plain-error doctrine. We disa­

gree.

¶ 46                                  1. The Applicable Law

¶ 47           Prosecutors are afforded wide latitude during closing argument and may properly

comment on the evidence presented and reasonable inferences drawn from that evidence, re­

spond to comments made by defense counsel that invite a response, and comment on the credi­



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bility of a witness. People v. Burman, 2013 IL App (2d) 110807, ¶ 25, 986 N.E.2d 1249; People

v. Blue, 189 Ill. 2d 99, 127, 724 N.E.2d 920, 935 (2000). However, a prosecutor may not person­

ally vouch for the credibility of a witness or bolster a witness’s testimony. People v. Effinger,

2016 IL App (3d) 140203, ¶ 24, 53 N.E.3d 985. It is also improper for a prosecutor to misstate

the evidence or argue facts not in evidence. People v. Green, 2017 IL App (1st) 152513, ¶ 77,

100 N.E.3d 491. To determine whether a prosecutor’s comment in closing argument was im­

proper, a reviewing court must view such comment in its proper context. People v. Sykes, 2012

IL App (4th) 111110, ¶ 47, 972 N.E.2d 1272.

¶ 48            Improper remarks during closing argument are reversible error only when they

cause substantial prejudice to the defendant. People v. Thompson, 2013 IL App (1st) 113105,

¶ 79, 997 N.E.2d 681. Substantial prejudice occurs if the improper remarks were a material fac­

tor in the defendant’s conviction. Id. Improper remarks are a material factor if (1) the jury could

have reached a contrary verdict had the improper remarks not been made or (2) the reviewing

court cannot say that the prosecutor’s improper remarks did not contribute to the defendant’s

conviction. People v. Wheeler, 226 Ill. 2d 92, 123, 871 N.E.2d 728, 745 (2007). The strength of

the evidence offered against a defendant is often a decisive factor when determining whether the

improper statements were a material factor in his conviction. Compare People v. Johnson, 208

Ill. 2d 53, 117, 803 N.E.2d 405, 441-42 (2003) (prosecutor’s improper statements did not cause

substantial prejudice when the State introduced defendant’s confession, physical evidence, and

the uncontradicted testimony of an eyewitness to the crime), with Wheeler, 226 Ill. 2d at 131

(prosecutor’s improper remarks caused substantial prejudice when conviction was largely based

upon the credibility of the testifying police officers).

¶ 49                 2. The Standard of Review and the Plain-Error Doctrine



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¶ 50            The Illinois Appellate Court is divided on whether to apply an abuse of discretion

standard or de novo review when reviewing allegations of prosecutorial misconduct. See Ryan T.

Harding, Division in the Illinois Appellate Court: What is the Appropriate Standard of Review

for Alleged Prosecutorial Misconduct During Closing Argument?, 38 N. Ill. U. L. Rev. 504, 508­

12 (2018). The First District has applied an abuse of discretion standard. People v. Willis, 2013

IL App (1st) 110233, ¶ 102, 997 N.E.2d 947. The Third District and this court have consistently

applied de novo review. People v. Palmer, 382 Ill. App. 3d 1151, 1160, 889 N.E.2d 244, 251

(2008); People v.McCoy, 378 Ill. App. 3d 954, 964, 881 N.E.2d 621, 631-32 (2008). Consistent

with our court’s established precedent, we will continue to apply de novo review. Palmer, 382

Ill. App. 3d at 1160 (citing Wheeler, 226 Ill. 2d at 121); State Farm Fire & Casualty Co. v.

Yapejian, 152 Ill. 2d 533, 539-540, 605 N.E.2d 539, 542 (1992) (decision of an appellate court is

not binding upon other appellate districts).

¶ 51            To preserve an alleged error for appeal, a defendant must object at trial and file a

written posttrial motion. People v. Colyar, 2013 IL 111835, ¶ 27, 996 N.E.2d 575. Failure to do

either results in forfeiture. People v. Sebby, 2017 IL 119445, ¶ 48, 89 N.E.3d 675.

¶ 52            Nonetheless, the plain-error doctrine bypasses normal forfeiture principles and

allows a reviewing court to consider an unpreserved error when (1) the evidence is close, regard­

less of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the

evidence. People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d 467, 479-80 (2005).

¶ 53            Typically, the initial step under either prong of the plain-error doctrine is to de­

termine whether there was a clear or obvious error at all. Sebby, 2017 IL 119445, ¶ 49. When a

defendant claims first-prong error, he must prove there was a plain error and that the evidence

was so closely balanced that the error alone severely threatened to tip the scales of justice against



                                                 - 13 ­
him. Herron, 215 Ill. 2d at 187. In determining if the evidence was close, a reviewing court must

evaluate the totality of the evidence and conduct a qualitative, commonsense assessment of the

evidence within the context of the case. Sebby, 2017 IL 119445, ¶ 53. If the defendant meets his

burden, he has demonstrated actual prejudice and his conviction should be reversed. Id. ¶ 51.

¶ 54            When a defendant claims second-prong error, he must prove that a structural error

occurred. People v. Thompson, 238 Ill. 2d 598, 613, 939 N.E.2d 403, 413 (2010). A structural

error is an error that renders a criminal trial fundamentally unfair or unreliable in determining a

defendant’s guilt or innocence. People v. Bowens, 407 Ill. App. 3d 1094, 1101, 943 N.E.2d 1249,

1258-59 (2011). Structural errors occur in very limited circumstances, such as a complete denial

of counsel, denial of self-representation at trial, trial before a biased judge, denial of a public tri­

al, racial discrimination in the selection of a grand jury, or a defective reasonable doubt instruc­

tion. People v. Averett, 237 Ill. 2d 1, 12-13, 927 N.E.2d 1191, 1198 (2010). Recently, the Su­

preme Court of the United States has concluded that, subject to exceptions, a violation of the

right to a public trial is also a structural error. Weaver v. Massachusetts, 137 S. Ct. 1899, 1909­

10 (2017).

¶ 55            The defendant bears the burden of persuasion at all times under the plain-error

doctrine. Herron, 215 Ill. 2d at 187. If the defendant fails to meet his burden, the issue is forfeit­

ed and the reviewing court will honor the procedural default. People v. Ahlers, 402 Ill. App. 3d

726, 734, 931 N.E.2d 1249, 1255 (2010).

¶ 56                                         3. This Case

¶ 57            Errors certainly occurred in this case. First, the prosecutor erred when he argued

that “Jesse Harper *** plead [sic] guilty to this offense, and he plead [sic] guilty to this offense

because primarily [sic] of Erica Bennett’s statements that day.” Even though the trial court made



                                                 - 14 ­
a most unusual ruling to permit the State after closing arguments had begun to inform the jury

that Harper had pleaded guilty to a methamphetamine charge arising from the same incident,

there was still no evidence introduced establishing why he pleaded guilty. Accordingly, by argu­

ing that Harper pleaded guilty because of the strength and veracity of Bennett’s statements to the

police, the prosecutor’s argument was not based on facts in evidence or reasonable inferences

from the evidence.

¶ 58           Second, during rebuttal argument, the prosecutor argued that Bennett’s plea deal

“had nothing to do with this case. She testified she wasn’t promised anything, that this case had

nothing to do with her case. You take that as the truth. There is no evidence stating otherwise,

and believe me, if there was, you would hear about it.” (Emphasis added.) The prosecutor’s

statement to take Bennett’s testimony “as the truth” was also improper. See People v. Schaefer,

217 Ill. App. 3d 666, 668-69, 577 N.E.2d 855, 856-57 (1991) (improper for prosecutor to offer

personal opinion on the truth of a witness’s statement).

¶ 59           Despite the existence of these errors, defendant fails to satisfy either prong of the

plain-error doctrine. First, defendant fails to demonstrate that the evidence was closely balanced.

Instead, after a commonsense assessment of the evidence, we conclude the evidence is undisput­

ed that (1) defendant’s vehicle was used as a mobile methamphetamine lab, (2) defendant did not

report his vehicle as stolen, (3) defendant’s checkbook and driver’s license were found in his ve­

hicle, (4) his driver’s license was used on multiple occasions to purchase pseudoephedrine-based

cold pills, and (5) multiple receipts for pseudoephedrine-based cold pills were found in defend­

ant’s vehicle. Even if we exclude the testimony of Bennett, the circumstantial evidence against

defendant is overwhelming.

¶ 60           Second, although errors occurred, defendant fails to establish that they were so



                                               - 15 ­
serious that a structural error occurred. See People v. Shaw, 2016 IL App (4th) 150444, ¶ 72, 52

N.E.3d 728 (“The State’s closing and rebuttal arguments here do not fit within the limited class

of cases where structural error has been found, nor did the arguments affect the fairness of de­

fendant’s trial or challenge the integrity of the judicial process.”). Therefore, the issue is forfeit­

ed, and we will honor the procedural default. Ahlers, 402 Ill. App. 3d at 734.

¶ 61                                    C. The Improper Fines

¶ 62            Finally, defendant argues that various fines imposed by the circuit clerk were im­

proper and must be vacated. The State concedes this issue. However, in light of the Illinois Su­

preme Court’s recent decision in People v. Vara, 2018 IL 121823, ¶ 23, we lack jurisdiction to

review the circuit clerk’s recording of fines that were not included as a part of the trial court’s

final judgment. Accordingly, we decline to address this issue.

¶ 63                                     III. CONCLUSION

¶ 64            For the reasons stated, we affirm the trial court’s judgment.

¶ 65            Affirmed.




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