                       Illinois Official Reports

                              Appellate Court



                   People v. Gashi, 2015 IL App (3d) 130064



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           LIRIDON GASHI, Defendant-Appellant.




District & No.    Third District
                  Docket No. 3-13-0064




Filed             April 7, 2015




Decision Under    Appeal from the Circuit Court of Henry County, No. 12-CF-22; the
Review            Hon. Ted J. Hamer, Judge, presiding.




Judgment          Reversed and remanded.




Counsel on        Mario Kladis, of State Appellate Defender’s Office, of Ottawa, for
Appeal            appellant.

                  Matthew P. Schutte, State’s Attorney, of Cambridge (Laura E.
                  DeMichael, of State’s Attorneys Appellate Prosecutor’s Office, of
                  counsel), for the People.
     Panel                    JUSTICE LYTTON delivered the judgment of the court, with opinion.
                              Presiding Justice McDade specially concurred, with opinion.
                              Justice Schmidt concurred in part and dissented in part, with opinion.



                                               OPINION

¶1         Defendant Liridon Gashi was convicted of two counts of aggravated criminal sexual abuse
       following a jury trial. The trial court sentenced defendant to 24 months of conditional
       discharge. Defendant appeals, arguing that he was denied a fair trial because the trial court (1)
       told jurors that they could decide what “reasonable doubt” means, and (2) failed to ask
       prospective jurors if they understood and accepted each of the principles set forth in Illinois
       Supreme Court Rule 431(b) (eff. July 1, 2012). We agree that the trial court committed
       reversible error by telling jurors that they could decide for themselves what “reasonable doubt”
       means. We reverse and remand.

¶2                                                 FACTS
¶3         In January 2012, the State charged defendant, a 24-year-old, with six counts of aggravated
       criminal sexual abuse. 720 ILCS 5/12-16(d) (West 2010). Counts I, III and V of the
       information alleged that defendant inserted his finger into the vagina of M.G.S., a 16-year-old,
       between November 2011 and December 2011. Counts II, IV, and VI alleged that defendant
       fondled M.G.S.’s breasts during the same time period. Defendant pled not guilty. The case
       proceeded to a jury trial.
¶4         During voir dire, the trial judge stated that defendant was presumed innocent, and then
       asked the potential jurors, “Is there anybody that disagrees with that?” After noting that no one
       raised a hand, the judge continued: “Before Mr. Gashi can be convicted–in other words, found
       guilty–the State of Illinois through [the prosecutor], must prove him guilty beyond a
       reasonable doubt. Is there anybody that has any difficulty with that?” When no one raised a
       hand, the judge continued:
                   “Beyond a reasonable doubt is the highest standard of proof. It’s the same burden in
               every courtroom throughout the United States. And I’ll also tell you this: At the end of
               the case, you’re going to get jury instructions on the law, but you will not get a
               definition of beyond a reasonable doubt. That is for you to determine.
                   Mr. Gashi is not required to offer any evidence on his behalf. In other words, he
               does not have to testify. He does not have to have [his attorney] ask questions. He does
               not have to call any witnesses on his behalf. Is there anybody that has difficulty with
               that?
                   Let the record reflect that no one raised their hand.
                   Mr. Gashi also does not have to testify in this case, and you are not to hold that
               against him in arriving at your verdict if he does not testify. In other words, you can’t
               say, well, he didn’t testify, he must be guilty because he didn’t testify. That’s not the
               way it works. You are not to hold that against him in any way. Is there anybody that has
               any difficulty with that?


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                   Let the record reflect that no one raised their hand.”
¶5         After the jury was selected but before the trial began, the trial judge stated: “As I said
       earlier today, you will decide what reasonable doubt is. There’s not going to be a jury
       instruction that explains it to you. It is what it is, beyond a reasonable doubt.”
¶6         Defendant’s trial then began with the testimony of M.G.S., who testified that she worked
       with defendant at Parkway Grill in 2011, when she was 16 years old. He was a cook, and she
       was a waitress. She and defendant began texting each other in September “and started a
       physical relationship [in] late October, early November” of 2011. In one of her texts, she told
       defendant that she was 16 years old. She and defendant talked once about their relationship
       being illegal because of her age. M.G.S. could not recall the specifics of that conversation.
¶7         M.G.S. and defendant kissed approximately five or six times in the back hallway and just
       outside the back door of Parkway Grill from late October to early November. In
       mid-November 2011, defendant began touching her breasts and vagina under her clothing. She
       estimated that defendant touched her breasts and vagina approximately 5 to 15 times between
       mid-November to mid-December 2011. He inserted his finger in her vagina five to eight times
       during that time period. These activities took place at Parkway Grill and defendant’s
       apartment.
¶8         In December 2011, Jan Stohl, the mother of one of M.G.S.’s friends, found out what
       defendant was doing and confronted M.G.S., defendant and the owner of Parkway Grill. After
       that, M.G.S. told her mother what defendant had been doing. Her mother took her to the police
       station to file a police report. The last time defendant touched M.G.S. was approximately a
       week before she went to the police station.
¶9         M.G.S. testified that her relationship with defendant was secret by “[d]esign.” She and
       defendant never went out in public together. In Illinois, people tell M.G.S. that they think she
       looks older than she is. In Missouri, where M.G.S. now lives, people tell her that she looks
       younger than she is.
¶ 10       Jan Stohl testified that she has known M.G.S. since she was “about six months old.”
       Stohl’s daughter and M.G.S. were friends. In mid-December 2011, Stohl learned that M.G.S.
       was having an improper relationship with defendant, so she went to Parkway Grill and spoke to
       the owner of the restaurant, defendant and M.G.S. Stohl asked defendant if he knew his
       relationship with M.G.S. was illegal. Defendant responded, “yes,” and said he understood.
       When Stohl asked defendant if he knew he could go to jail for what he did to M.G.S., defendant
       answered, “yes,” he did know that but said “I’m not going to jail.” According to Stohl,
       defendant also apologized and said he “knew that it was wrong.”
¶ 11       Stohl testified that her conversation at Parkway Grill lasted approximately 15 to 20
       minutes. During that time, she repeatedly stated that defendant’s actions were wrong and
       illegal. She also repeatedly asked defendant if he knew that his actions were wrong and illegal.
       Every time she asked defendant that question, he said that he knew it was illegal and that he
       was sorry. She admitted that she was talking quickly at the beginning of the conversation but
       slowed down as she became calmer. Defendant seemed to understand what she was saying
       during the entire conversation.
¶ 12       Steve Whittington, a police officer for the City of Geneseo, testified that he and another
       officer, Tim Wise, interviewed defendant at the police station on January 18, 2012. A DVD of
       that interview was played for the jury. In that interview, defendant stated he is from Kosovo


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       and has lived in the United States for three years. He learned English while living in Kosovo.
       Defendant said that he had known M.G.S. for five to seven months. He admitted kissing her a
       few times in his car and his apartment. He also admitted that he touched her breasts and
       inserted his finger in her vagina one time at his apartment. When Officer Whittington asked
       defendant if he knew how old M.G.S. was, he said, “After we did that, then I knew exactly how
       old she is.” He never considered M.G.S. to be his girlfriend but said that he would want to be
       M.G.S.’s boyfriend “[i]f she’s over 18.”
¶ 13        After the State presented its witnesses, defendant moved for a directed verdict, which the
       trial court denied. Defendant then testified that he did not find out that M.G.S. was 16 years
       old until January 18, 2012, when he went to the police station, and Officer Whittington told
       him. He denied ever texting M.G.S. about his age or anything else. He testified that it was “not
       possible” for him to know that M.G.S. was 16 years old because “she looks more mature than
       her age.” He thought M.G.S. was between 17½ and 18 years old because she was a waitress,
       and he believed that waitresses had to be 18 or older.
¶ 14        Defendant testified that when Stahl confronted him at Parkway Grill, she was talking fast,
       and he had difficulty understanding everything she was saying. He testified that he did not
       know what “jail” meant until the day he went to the police station. He testified that
       “[e]verything that happened with [M.G.S.] happened only twice.” He testified that he touched
       M.G.S.’s breasts over her shirt once to push her away when she tried to kiss him. After that, he
       put his hand under M.G.S.’s shirt and bra and touched her breasts one time in his apartment. He
       testified that he touched her vagina only over her pants. He admitted that he told the officers
       that he inserted his finger in M.G.S.’s vagina but said he thought that meant he touched “her
       vagina even though my hand was on the–on the pants.”
¶ 15        After defendant’s testimony, the jury was excused until the following day. The next
       morning, the jury was given instructions and heard closing arguments. By early that afternoon,
       the jury had reached a verdict. The jury found defendant guilty of two counts of aggravated
       criminal sexual abuse (counts I and II of the information). 720 ILCS 5/12-16(d) (West 2010).
       The trial court sentenced defendant to 24 months of conditional discharge.

¶ 16                                                  I
¶ 17       Defendant first argues that the trial judge committed reversible error by telling jurors that
       they could “decide” and “determine” the meaning of “reasonable doubt” for themselves.
¶ 18       It is well settled that courts in this state should refrain from attempting to define
       “reasonable doubt.” People v. Speight, 153 Ill. 2d 365, 374 (1992); People v. Flynn, 378 Ill.
       351, 356 (1941); People v. Johnson, 317 Ill. 430, 436 (1925). This is because the concept of
       “reasonable doubt” is self-explanatory; it “needs no explanation.” People v. Garcia, 103 Ill.
       App. 3d 779, 784 (1981); Flynn, 378 Ill. at 356; Johnson, 317 Ill. at 436. “There is no better
       definition of reasonable doubt than the words themselves.” People v. Jenkins, 89 Ill. App. 3d
       395, 398 (1980). Providing a definition of reasonable doubt is more likely to confuse a jury
       than clarify its meaning. Johnson, 317 Ill. at 436.
¶ 19       Illinois appellate courts disagree about whether it is permissible for a trial judge to tell
       jurors that they can decide for themselves what reasonable doubt means. See People v.
       Thomas, 2014 IL App (2d) 121203, ¶ 47 (permissible); People v. Downs, 2014 IL App (2d)
       121156, ¶ 28 (impermissible); People v. Johnson, 2013 IL App (1st) 111317, ¶ 54


                                                   -4-
       (permissible); People v. Franklin, 2012 IL App (3d) 100618, ¶ 28 (impermissible); People v.
       Turman, 2011 IL App (1st) 091019, ¶ 25 (impermissible).
¶ 20       The first Illinois court to address the issue was the First District. See Turman, 2011 IL App
       (1st) 091019. In Turman, after several hours of deliberating, the jurors asked the trial judge for
       a “ ‘more explicit, expansive definition of reasonable doubt.’ ” Id. ¶ 19. The trial judge
       responded, “ ‘[R]easonable doubt is not defined under Illinois law. It is for the jury to
       collectively determine what reasonable doubt is.’ ” Id. The First District ruled that the trial
       court erred in giving this explanation of reasonable doubt to the jury. Id. ¶ 25. The court stated
       that “[b]y instructing the jurors that they should collectively determine what reasonable doubt
       was, the court allowed the jury to use a standard that in all likelihood was below the threshold
       of a reasonable doubt standard.” Id.
¶ 21       Our court was the next to rule that a trial court erred in instructing potential jurors that they
       could define “reasonable doubt” for themselves. Franklin, 2012 IL App (3d) 100618. In
       Franklin, the trial judge instructed venire members: “ ‘Beyond a reasonable doubt means
       beyond a reasonable doubt. It’s what each of you individually and collectively, as 12 of you,
       believe is beyond a reasonable doubt.’ ” Id. ¶ 4. We held that the court’s attempt to explain
       reasonable doubt was improper because there is no better definition of reasonable doubt than
       the words themselves. Id. ¶ 25. We further held that “by telling jurors that it was for them to
       collectively determine what reasonable doubt meant, there is a reasonable likelihood that the
       jurors understood the instruction to allow a conviction based on proof less than a reasonable
       doubt.” Id. ¶ 28 (citing Turman, 2011 IL App (1st) 091019, ¶¶ 25, 27).
¶ 22       One year later, a panel of the First District different than the panel that decided Turman
       issued a contrary opinion. See Johnson, 2013 IL App (1st) 111317. In Johnson, the trial court
       told potential jurors during voir dire that “ ‘proof beyond a reasonable doubt’ ” is “ ‘not
       defined by the Supreme Court or by the State legislature’ ” but is “ ‘something for you to
       decide.’ ” Id. ¶ 52. The First District reasoned that the trial court’s statements did not constitute
       error because the judge also told potential jurors that “ ‘[p]roof beyond a reasonable doubt is
       the highest burden that there is at law in Illinois and the United States.’ ” Id. ¶¶ 52-54.
¶ 23       The Second District has also issued conflicting decisions regarding whether a trial court
       can instruct jurors to define reasonable doubt for themselves. See Downs, 2014 IL App (2d)
       121156; Thomas, 2014 IL App (2d) 121203. In Downs, the jury sent the trial judge a note
       during deliberations and asked, “ ‘What is your definition of reasonable doubt, 80%, 70%,
       60%?’ ” Downs, 2014 IL App (2d) 121156, ¶ 17. The court responded, “ ‘We cannot give you
       a definition[;] it is your duty to define.’ ” Id. Relying on the First District’s decision in Turman
       and our decision in Franklin, the Second District ruled that the trial court’s response
       impermissibly instructed the jurors that they could collectively define reasonable doubt.
       Id. ¶ 27. The court also found that there was “manifest” danger that the jury might have used a
       standard less than reasonable doubt since the jury’s question suggested that it was considering
       using a lower standard. Id. ¶ 28.
¶ 24       Just a few months later, the Second District issued its decision in Thomas, 2014 IL App
       (2d) 121203. In that case, jurors sent the trial judge a note during deliberations asking,
       “ ‘[W]hat is the legal definition of reasonable doubt?’ ” Id. ¶ 14. In a written note, the judge
       responded, “ ‘It is for you to determine ***.’ ” Id. The Second District found that the trial
       court’s “response was unquestionably correct” and “a correct statement of Illinois law.”
       Id. ¶ 47. However, Justice Hudson, specially concurring, found that telling jurors that

                                                     -5-
       reasonable doubt “ ‘is for you to decide’ ” is risky because it “could be read as vesting a jury
       with the discretion to interpret the term to mean whatever it wants it to mean.” Id. ¶ 56
       (Hudson, J., specially concurring).
¶ 25        Here, where the trial court told jurors that they could “decide” or “determine” for
       themselves what reasonable doubt means, the court committed error. See Turman, 2011 IL
       App (1st) 091019, ¶ 25. However, defendant did not object or raise this issue in a posttrial
       motion, so it is waived unless defendant can establish plain error. See Franklin, 2012 IL App
       (3d) 100618, ¶ 22. A “defective reasonable doubt instruction” constitutes a structural error
       under the second prong of the plain-error doctrine that requires reversal and remand for a new
       trial. See id. ¶ 23. A constitutionally deficient reasonable doubt instruction is one that does not
       correctly convey the concept of reasonable doubt and creates a reasonable likelihood that the
       jury understood the instruction to allow them to find the defendant guilty based on a standard
       of proof less than beyond a reasonable doubt. Id.; Victor v. Nebraska, 511 U.S. 1, 5 (1994).
¶ 26        A judge’s statement to potential jurors that they are free to “decide what reasonable doubt
       is” implies “that there is an extraordinarily broad range of possible meanings” for the concept
       of “reasonable doubt,” some of which may be unconstitutional. See Wansing v. Hargett, 341
       F.3d 1207, 1214 (10th Cir. 2003). Such a statement makes “it reasonably likely that the jury
       would overestimate the amount of latitude it had in defining the reasonable doubt standard.”
       Id. at 1215. It subverts the self-explanatory character of the term and invites the jurors to
       decide the definition of “reasonable doubt” for themselves. See id. at 1214. A trial judge sends
       an unconstitutional message by telling jurors that they have discretion to make their own
       subjective determination about what “reasonable doubt” means. See id. at 1215.
¶ 27        The timing of a trial court’s comments about “reasonable doubt” is relevant in determining
       the likelihood that the comments influenced the jury. Id. When the judge makes such
       statements during voir dire and the trial is relatively short, those statements are not “a distant
       memory” when the jury goes to deliberate. Id. Additionally, when the statements are made
       before trial begins “[i]t is likely that the jurors were particularly receptive to the guidance they
       received at that time, when they were thinking about the issue and not overburdened with other
       issues and other instructions.” Id.
¶ 28        Here, the trial judge told potential jurors during voir dire that it was for them to determine
       what reasonable doubt is. Later, after the jury was chosen but before trial began, the judge
       reiterated that the jurors “decide what reasonable doubt is.” These statements sent an
       unconstitutional message to jurors that they had discretion to determine what “reasonable
       doubt” means. See id. at 1214. These statements likely influenced the jury because they were
       made just one day before the jury reached its verdict, making the statements fresh in the jurors’
       minds when they deliberated. See id. They were also made at a time when the jurors were
       likely receptive to the court’s guidance because the trial had not yet begun and they were not
       overburdened by other issues or instructions. See id. Based on the totality of the circumstances,
       there is a reasonable likelihood that the jury understood the trial court’s statements to allow
       them to find defendant guilty based on a standard of proof that was less than beyond a
       reasonable doubt. Thus, we reverse and remand for a new trial.
¶ 29        Although not binding on retrial, the evidence in this case was sufficient to prove defendant
       guilty beyond a reasonable doubt, so double jeopardy does not bar retrial. See People v. Junior,
       349 Ill. App. 3d 286, 293 (2004).


                                                    -6-
¶ 30                                                  II

¶ 31       Defendant also argues that the trial court committed reversible error by failing to ask
       prospective jurors whether they understood all of the principles set forth in Rule 431(b).
¶ 32       This is a question of law we review de novo. People v. Belknap, 2014 IL 117094, ¶ 41.
       Defendant did not object or raise this issue in a posttrial motion; therefore, any claimed error
       must be the subject of plain-error analysis. See People v. Wilmington, 2013 IL 112938, ¶ 31.
       The plain-error doctrine allows errors not previously challenged to be considered on appeal if
       either: (1) the evidence is so closely balanced that the error alone threatened to tip the scales of
       justice against the defendant; or (2) the error was so fundamental and of such magnitude that it
       affected the fairness of the trial and challenged the integrity of the judicial process, regardless
       of the closeness of the evidence. Id.
¶ 33       The first step of plain-error analysis is to consider whether an error occurred. See id. Rule
       431(b) provides:
                    “(b) The court shall ask each potential juror, individually or in a group, whether that
                juror understands and accepts the following principles: (1) that the defendant is
                presumed innocent of the charge(s) against him or her; (2) that before a defendant can
                be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3)
                that the defendant is not required to offer any evidence on his or her own behalf; and (4)
                that if a defendant does not testify it cannot be held against him or her; however, no
                inquiry of a prospective juror shall be made into the defendant’s decision not to testify
                when the defendant objects.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 34       “[T]he language of Rule 431(b) is clear and unambiguous ***.” People v. Belknap, 2014
       IL 117094, ¶ 45. It requires trial courts to ask prospective jurors whether they both understand
       and accept the four principles set forth in the rule. Id. ¶ 46. “The failure to do so constitutes
       error.” Id. ¶ 45 (citing People v. Thompson, 238 Ill. 2d 598, 607 (2010)).
¶ 35       Here, the trial court asked potential jurors if any of them “disagreed with” the first principle
       and had “difficulty with” the remaining three principles. Asking potential jurors if they have
       “difficulty with” a principle encompasses both understanding and acceptance because a person
       who does not understand or accept a principle would have “difficulty with” it. People v. Ware,
       407 Ill. App. 3d 315, 356 (2011). Asking venire members if they “disagree with” a principle
       may be tantamount to asking whether they accept it; however, it does not satisfy Rule 431(b)’s
       requirement that the court also inquire whether potential jurors understand the principle.
       Belknap, 2014 IL 117094, ¶ 46; Wilmington, 2013 IL 112938, ¶ 32. In this case, the trial court
       failed to ask the jurors whether they understood the first principle. Thus, the court committed
       error. See id.
¶ 36       Now we must determine if the error necessitates reversal pursuant to the plain-error rule.
       Rule 431(b) errors are not structural errors under the second prong of the plain-error analysis.
       See Belknap, 2014 IL 117094, ¶ 47; Wilmington, 2013 IL 112938, ¶ 33. Thus, defendant is
       entitled to reversal only if he satisfies the first prong of the plain-error doctrine: that the
       evidence is so closely balanced that the error alone threatened to tip the scales of justice against
       him. See Wilmington, 2013 IL 112938, ¶ 34. In reviewing a claim under the first prong of the
       plain-error doctrine, the reviewing court “must make a commonsense assessment of the
       evidence within the context of the circumstances of the individual case.” Belknap, 2014 IL
       117094, ¶ 52.

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¶ 37       A person “commits aggravated criminal sexual abuse if he or she commits an act of sexual
       penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years
       of age and the accused was at least 5 years older than the victim.” 720 ILCS 5/12-16(d) (West
       2010). “It shall be a defense under *** subsection (d) of Section 12-16 of this Code that the
       accused reasonably believed the person to be 17 years of age or over.” 720 ILCS 5/12-17 (West
       2010).
¶ 38       Here, both M.G.S. and defendant consistently testified that defendant touched M.G.S.’s
       breasts. M.G.S. also testified that defendant inserted his finger in her vagina. While defendant
       testified at trial that he only touched M.G.S.’s vagina outside of her clothes, during his
       interview with Whittington and Wise, he admitted inserting his finger in her vagina. Thus, the
       evidence that defendant committed acts of sexual penetration and sexual conduct against
       M.G.S. was not closely balanced.
¶ 39       The evidence that defendant did not reasonably believe M.G.S. was 17 years of age or
       older was also not closely balanced. Defendant testified at trial and told Whittington and Wise
       that he did not know M.G.S. was under 17 years old when he touched her and only learned that
       she was 16 years old when the officers told him. However, M.G.S. testified that she told
       defendant her age before their relationship became “physical.” She further testified that she
       and defendant talked about the illegality of their relationship, which is why they kept it a
       secret. Further, Stohl testified that defendant acknowledged that his relationship with M.G.S.
       was illegal and could cause him to go to jail.
¶ 40       Because the evidence in this case was not closely balanced, defendant is not entitled to
       reversal under either prong of the plain-error doctrine because of the trial court’s failure to
       strictly comply with the Rule 431(b) requirements. See Wilmington, 2013 IL 112938, ¶ 34.

¶ 41                                        CONCLUSION
¶ 42       The judgment of the circuit court of Henry County is reversed, and the cause is remanded
       for further proceedings.

¶ 43       Reversed and remanded.

¶ 44        PRESIDING JUSTICE McDADE, specially concurring.
¶ 45        I agree with and concur in (1) the finding that the trial court committed reversible error by
       telling jurors that they could decide for themselves what “reasonable doubt” means and (2) in
       the decision to reverse and remand.
¶ 46        I write separately to note that we have recently considered several cases raising this same
       issue, and it strikes me that the problem may arise because we are conflating two concepts
       which ought, in fact, to remain separate. One is the meaning of reasonable doubt and the
       second is the jury’s duty to determine whether any doubt they have about the defendant’s guilt
       is reasonable.
¶ 47        The jury is told, quite properly, that there is no definition for the term “reasonable doubt.” I
       believe that impropriety arises when they are then told that it is for them to determine what
       reasonable doubt means or is. That would appear to be an invitation for the jurors to define
       what is otherwise purposely undefined.


                                                     -8-
¶ 48       In reality, what we want them to do is assess all of the evidence and evaluate the credibility
       of the witnesses and then decide whether any doubt they may feel about the defendant’s guilt is
       reasonable.
¶ 49       I wonder if an instruction along the following lines, if approved, might be helpful:
               “Reasonable doubt is not defined and it is not for you to define it. Rather, it is the duty
               of each of you to assess all of the evidence and evaluate the credibility of the witnesses
               and then decide whether any doubt you may feel about the defendant’s guilt is
               reasonably supported by what the evidence has or has not shown or is an unwarranted
               or unreasonable stretch.”

¶ 50        JUSTICE SCHMIDT, concurring in part and dissenting in part.
¶ 51        I concur in the majority’s decision that the evidence in this case was not closely balanced
       and the trial judge’s failure to strictly comply with Rule 431(b) requirements is not plain error
       and, therefore, not reversible. I dissent from that portion of the opinion that reverses the
       defendant’s conviction based upon the trial judge’s statements regarding reasonable doubt. As
       the majority correctly notes, the United States Supreme Court has explained that the proper
       inquiry is not whether a reasonable doubt instruction could have been applied in an
       unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply
       it. Supra ¶ 25; Victor v. Nebraska, 511 U.S. at 5; Estelle v. McGuire, 502 U.S. 62, 72 (1991).
¶ 52        The majority incorrectly characterizes the trial judge’s comments about reasonable doubt
       as “[telling] jurors that they could ‘decide’ or ‘determine’ for themselves what reasonable
       doubt means.” Supra ¶ 25. As the Supreme Court made clear in Victor, the language in an
       instruction “cannot be sequestered from its surroundings.” Victor v. Nebraska, 511 U.S. at 16.
       Here, again, the trial judge stated:
                     “Before Mr. Gashi can be convicted–in other words, found guilty–the State of
                Illinois, through Mr. Patten, must prove him guilty beyond a reasonable doubt. Is there
                anybody that has any difficulty with that?
                     Beyond a reasonable doubt is the highest standard of proof. It’s the same burden in
                every courtroom throughout the United States. And I’ll also tell you this: At the end of
                the case, you’re going to get jury instructions on the law, but you will not get a
                definition of beyond a reasonable doubt. That is for you to determine.”
       After the jury was selected but before the trial began, the trial judge stated:
                “As I said earlier today, you will decide what beyond a reasonable doubt is. There’s not
                going to be a jury instruction that explains that to you. It is what it is, beyond a
                reasonable doubt.”
¶ 53        Looking at the trial judge’s comments as a whole, as the Supreme Court says we must,
       there is nothing that should lead a reasonable person to conclude there is a reasonable
       likelihood that the jury understood these comments to allow conviction based on anything
       other than proof beyond a reasonable doubt. There is no reasonable likelihood that the jurors
       who determined defendant’s guilt applied the court’s comments in a way that violated the
       Constitution. See Victor, 511 U.S. at 22-23. The trial court explained the State’s burden of
       proof was “the highest standard of proof” as “in every courtroom throughout the United
       States.” When further explaining that there would be no formal instruction on reasonable
       doubt, the court explained, “It is what it is, beyond a reasonable doubt.” It is a mystery to me as

                                                    -9-
       to how any person, reasonable or otherwise, could construe the judge’s comments as an
       invitation to convict on an unconstitutional standard. Yet, the majority concludes that not only
       could the jury have done so, it likely did.
¶ 54       Further, the trial court’s statement is a correct statement of the law. Query: If the court will
       not define reasonable doubt, who is left to do so? There is only one possible answer: the jury. I
       believe that the Second District got it right in People v. Thomas, 2014 IL App (2d) 121203. The
       majority finds comfort in Justice Hudson’s special concurrence in which he opined that the
       language “ ‘could be read as vesting a jury with the discretion to interpret the term to mean
       whatever it wants it to mean.’ ” Supra ¶ 24 (quoting People v. Thomas, 2014 IL App (2d)
       121203, ¶ 56 (Hudson, J., specially concurring)). The majority overlooks two important
       points. Justice Hudson concurred in affirming the trial court. This was undoubtedly because he
       appreciated what the majority does not. That is, point number two. Remember Victor? The
       analysis does not turn on what was possible or what could have happened, but whether there is
       a reasonable likelihood that the jury did convict using an unconstitutional standard. Victor, 511
       U.S. at 5. Notwithstanding his caution to trial judges, Justice Hudson obviously did not believe
       the jury likely did so (ergo, his concurrence) and neither do I.
¶ 55       I would affirm defendant’s conviction.




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