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                               Appellate Court                           Date: 2018.02.01
                                                                         09:53:59 -06'00'




                  People v. Barnes, 2017 IL App (1st) 143902



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



District & No.    First District, Fourth Division
                  Docket No. 1-14-3902



Filed             November 30, 2017



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CR-14718; the
Review            Hon. Bridget Jane Hughes, Judge, presiding.



Judgment          Affirmed.


Counsel on        Michael J. Pelletier, Patricia Mysza, and Lauren A. Bauser, of State
Appeal            Appellate Defender’s Office, of Chicago, for appellant.

                  Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Christine Cook, and Gavin P. Quinn, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             PRESIDING JUSTICE BURKE delivered the judgment of the court,
                  with opinion.
                  Justices McBride and Ellis concurred in the judgment and opinion.
                                              OPINION

¶1        Following a jury trial, defendant Mitchell Barnes was found guilty of home invasion and
     robbery, then sentenced by the trial court to consecutive terms of imprisonment of 18 years and
     5 years, respectively. On appeal, defendant contends that (1) he was denied the right to a fair
     trial where the court prohibited him from presenting evidence of the victim’s prior convictions
     to support his claim of self-defense, (2) the court displayed “antagonism and bias” toward
     defense counsel in the jury’s presence, and (3) the court increased his mandatory minimum
     sentence by finding that he caused great bodily harm to the victim, even though that issue was
     not presented to the jury for a finding beyond a reasonable doubt. Defendant also contends that
     his sentence is excessive in light of his youth, lack of criminal background, and rehabilitative
     potential. For the reasons that follow, we affirm the judgment of the circuit court.

¶2                                         I. BACKGROUND
¶3                                          A. State Witnesses
¶4       William Mallette testified that on August 12, 2011, he was staying in room 251 at the
     Homestead Suites hotel in Schaumburg, Illinois. That night, he left the hotel at 9 p.m. for
     dinner, returned to the hotel to change his clothes, and then left the hotel again to go to a bar.
     He returned to the hotel that night and smoked a cigarette in the hotel’s designated smoking
     area. Three males, two black and one white, were also in the smoking area. They were
     discussing drugs, but Mallette told them that he was too old for that. He went back into the
     hotel, taking his money clip out of his pocket to retrieve his hotel keycard, and then returned to
     his room where he fell asleep.
¶5       He was awakened later that night by “very aggressive” knocking on his hotel room door.
     The person knocking told him through the door that the hotel was on fire. Mallette opened the
     door to his room where he saw a tall, black male, who punched him in the head. Mallette was
     not sure if the black male was one of the people he had seen earlier that night while he was
     smoking outside. The black male rushed the door, and a white male entered the room behind
     him. The two males attacked Mallette with a “barrage of punches.” Mallette testified that he
     was being hit so hard and fast that he went to the ground to try to protect himself. The fight
     started in the kitchen area of Mallette’s hotel room, but the two males dragged him into the
     living area where they continued to punch and kick him.
¶6       The black male punched him in the ribs, face, and kidneys, and Mallette asked them what
     they wanted. The black male told him that they were there to “rob and kill [him].” The white
     male pinned Mallette on his stomach while the black male kicked him in the ribs and stomped
     on the side of his face. The black male then got onto the bed and then jumped off the bed onto
     Mallette’s lower back. Mallette lost track of the white male, and the black male threw Mallette
     onto the bed face down. The black male got on top of Mallette and put his arms around his neck
     and tried to twist it. Mallette testified that he felt like the black male was trying to “rip [his]
     neck off [his] body.” The black male told Mallette that, if he stopped fighting, he would snap
     his neck, and it would be over.
¶7       Mallette tried to bite the black male’s arm, which startled him, and Mallette was able to
     break free from the chokehold. Mallette punched the black male in the face and in the groin.
     However, the black male was able to put Mallette back into a chokehold and continued trying


                                                  -2-
       to break his neck. Mallette lifted the black male up onto his back and tried to run through the
       nearby window, but he did not make it out. The black male continued punching Mallette and
       then threw him facedown onto the bed. The black male stood on top of the back of Mallette’s
       head and neck and pushed off the ceiling, forcing Mallette’s face down into the mattress with
       his foot. Mallette lost consciousness.
¶8         When he regained consciousness, there was no one else in the room. He called the front
       desk of the hotel and the police and stated that he was in excruciating pain, could barely move,
       and believed his lung was punctured. The police and paramedics transported him to the
       hospital, where he stayed for one week. He discovered that his wallet, credit cards, driver’s
       license, and cash were missing from his room. He testified that he has constant back pain as a
       result of the injuries he suffered that night.
¶9         On cross-examination, Mallette stated that he did not have any drugs in his system on the
       night of the incident but acknowledged that he drank several beers at dinner and at the bar that
       night. He denied offering defendant money for oral sex and denied touching any of the three
       males he saw outside while he was smoking a cigarette before the incident. He further stated
       that he had complained to the hotel management several times about the three males because
       they would smoke marijuana and drink beer in the hotel.
¶ 10       Joseph Stein testified that there were charges pending against him in relation to the incident
       with Mallette and that, in exchange for his testimony, he was agreeing to plead guilty to a
       charge of robbery and all other charges against him would be dismissed and the State would
       recommend a sentence of six years with boot camp. He testified that in August 2011 he was
       homeless and was friends with Joseph Pinsel, who lived at the Homestead Suites in
       Schaumburg. He testified that he would visit Pinsel at the Homestead Suites, where they would
       hang out with Gerard Golston and defendant, who were both students at Harper College. On
       August 12, 2011, he and Golston went to the Homestead Suites around 6 p.m. to visit Pinsel.
       They were drinking alcohol and smoking marijuana in Pinsel’s room and then went outside to
       smoke cigarettes. Golston and Stein testified that while they were in the hotel’s designed
       smoking area, Mallette approached them.
¶ 11       Stein testified that Mallette made “racial remarks” toward Golston and then put his arms
       around Stein and hold him that he was cute. Golston could not hear what Mallette said about
       him, but saw him touching Stein. Stein told Mallette to leave him alone and that he was a
       homophobe. Mallette asked Pinsel if he knew where he could get any cocaine and then showed
       the group some cash in a money clip. Mallette went back into the hotel, and Stein, Pinsel, and
       Golston returned to Pinsel’s room. Defendant joined them in Pinsel’s room, and Pinsel told
       him about the money clip and said that he wanted to try to steal it. Golston testified, however,
       that it was defendant’s idea to steal the money clip and that defendant was the first person to
       suggest robbing Mallette. Defendant started to formulate a plan to steal the money clip
       whereby defendant would knock on Mallette’s hotel room door and tackle or hit him when he
       opened the door. Then, Golston would go into the room and take the money clip while Stein
       waited outside in case defendant needed help with Mallette. Pinsel was supposed to stay in the
       hallway and be a lookout.
¶ 12       Defendant and Stein left the room, but Golston testified that he and Pinsel stayed in the
       room because Golston did not want to take part in the plan. Once Golston saw defendant knock
       on Mallette’s door, Golston ran out of the hotel and went to the convenience store across the
       street. Stein testified that he was behind a wall when defendant knocked on the door, but after

                                                   -3-
       Mallette opened the door, Stein testified that he heard a “boom,” as if defendant had tackled
       Mallette. Stein entered the room and saw defendant and Mallette fighting. Defendant was
       punching Mallette in the face and ribs and then started choking him. Stein grabbed the money
       clip from the kitchen counter and told defendant to leave with him. Defendant did not stop
       choking Mallette, however, and told Mallette that he was going to kill him. Stein ran outside to
       the parking lot, and defendant came out 45 minutes later wearing different clothes and shoes.
       Defendant told Stein that he changed clothes because he had blood on the clothes he had been
       wearing. He also told Stein that he was not sure if he killed Mallette or if he just hurt him badly.
       Stein observed that defendant had swollen knuckles and a bite mark on his arm.
¶ 13       Stein and defendant drove to a gas station and tried to use a credit card from Mallette’s
       money clip to buy gas, but the card did not work. They then went to Denny’s and used a debit
       card from the money clip to pay for their meal. When they returned to the Homestead Suites,
       they saw a police vehicle or ambulance in the parking lot, so they parked in the parking lot
       across the street from the hotel. They returned to the Homestead Suites after the emergency
       vehicle left, and Stein returned to Pinsel’s room while defendant went back to his own room.
       Golston testified that later that night police officers knocked on Pinsel’s hotel room door and
       they spoke to the officers. Golston further testified that the next day he saw defendant with
       Mallette’s money clip. On cross-examination, Stein testified that after they saw Mallette
       outside in the smoking area, Stein went to his room to apologize for telling him that he was a
       homophobe. Stein stated that this was Pinsel’s idea because Pinsel wanted to see if he could
       see the money clip inside the room so that they could steal it.
¶ 14       Schaumburg police officer Jim Hackett testified that on August 13, 2011, at 4:45 a.m., he
       was assigned to a battery at the Homestead Suites hotel. When he arrived, he observed two
       officers and paramedics were already with Mallette in room 251. He spoke with Mallette for
       less than one minute and, as a result of the conversation, went to speak with the occupants of
       room 254. He spoke to Mallette later that day in the hospital and noticed injuries to his face and
       legs. On cross-examination, Officer Hackett stated that Mallette told him he had “contact” with
       two black males and one Hispanic male, but the 911 call said three black males had been
       involved in the incident. He also stated that Mallette told him that “the black guy in room 254
       just kicked my ass.” Officer Hackett stated that he had an issue with Mallette’s timeline of the
       events because Mallette told him the attack occurred 20 minutes before the 911 call at 4:45
       a.m. but also said that the attack occurred between 1:30 and 1:50 a.m.
¶ 15       Dr. Elizabeth Schupp was qualified as an expert in the field of critical care medicine and
       pulmonary medicine and testified that she treated Mallette at the hospital on August 13, 2011.
       She noted that he was having trouble moving his lower extremities and complained of chest
       pain. Mallette told her that he had been assaulted in a hotel room, and she observed that he had
       the imprint of the sole of a shoe near his right ear. He repeated the version of events as
       recounted in his testimony but told Dr. Schupp he had lain still on the ground because he
       thought the two men would leave if he played dead and did not tell her that he lost
       consciousness. Dr. Schupp took an X-ray of his chest and discovered a partially collapsed lung.
       Dr. Schupp could tell from the X-ray that Mallette had previously sustained injuries to the right
       side of his chest and collarbone, but he had recovered from those injuries.
¶ 16       Dr. Schupp noted that although Mallette denied drug use, his drug screen tested positive for
       opiates. Dr. Schupp opined that the positive drug screen could be explained by the fact that the
       paramedics gave Mallette a Fentanyl IV in the ambulance. Dr. Schupp took Computerized

                                                    -4-
       Tomography (CT) scans of Mallette’s chest and back. She observed a contusion to his right
       lung and fractures of the transverse L2 and L3 lumbar spine. Dr. Schupp testified that a lot of
       force, 200 or 300 pounds of force, is required to fracture the transverse spine. The chest CT
       also showed a deflation of the right lung and three rib fractures.1 Dr. Schupp also took a CT
       scan of Mallette’s neck, which showed a fracture of the thyroid cartilage. Dr. Schupp testified
       that the thyroid cartilage can be fractured when someone tries to choke another person. She
       also testified that fractured thyroid cartilage is a very rare injury because it takes a lot of force
       to fracture the cartilage. Dr. Schupp explained that a fractured thyroid cartilage can be a
       life-threatening injury.
¶ 17        Dr. Schupp learned that Mallette was HIV positive but did not believe his HIV status had
       any effect on his injuries. She testified that she did not see very many people with the level of
       trauma Mallette exhibited. She testified that she was particularly “impressed” with the fact that
       Mallette had the imprint of a boot mark on his cheek because it meant that someone had
       stepped down on him with a lot of force while he was lying down. She further testified that the
       information Mallette provided her about the incident was “very consistent” with the injuries he
       exhibited. On cross-examination, Dr. Schupp acknowledged that at the time he arrived at the
       hospital, Mallette’s blood alcohol concentration was 0.162, well above the legal limit of 0.08.
¶ 18        Schaumburg police sergeant Greg Klebba testified that he was previously a detective with
       the criminal investigations bureau and was assigned to investigate the incident at issue in this
       case. He read the reports of officers who had previously worked on the case and then began
       looking for Mallette, defendant, and Pinsel. He spoke to Mallette at the hospital with his
       partner, Detective Tillema. He then went to the Homestead Suites, where he learned that
       defendant and Pinsel had been asked to leave the hotel. He went to defendant’s room and found
       a pair of high top shoes with a red stain on them that Sergeant Klebba thought could have been
       blood. The blood was later swabbed and sent to the Illinois State Police Crime Lab for testing
       in conjunction with a buccal swab from Mallette. The testing showed that the blood on the
       shoes was consistent with having originated from Mallette.
¶ 19        Sergeant Klebba learned that Pinsel was staying at another hotel in Hanover Park. Another
       detective interviewed Pinsel, and while he did, Stein arrived. Both Stein and Pinsel were taken
       to the Schaumburg police department, where Stein gave a statement to police. Pinsel returned
       to the Schaumburg police department a few days later, and Sergeant Klebba learned that
       defendant was staying at 5628 South Michigan Avenue in Chicago.
¶ 20        Sergeant Klebba and a team of officers and U.S. Marshals followed Pinsel to that address.
       Sergeant Klebba observed defendant enter Pinsel’s vehicle, and U.S. Marshals surrounded the
       vehicle. Sergeant Klebba arrested defendant and took him to the Schaumburg police
       department. On cross-examination, Sergeant Klebba acknowledged that Mallette told him that
       he was unconscious after the attack and that Officer Hackett’s report of the incident was not
       accurate.
¶ 21        Assistant State’s Attorney (ASA) Michael O’Malley testified that he met with defendant at
       the Schaumburg police department on the evening of August 18, 2011. He gave defendant his
       Miranda warnings, and defendant agreed to speak with him. Defendant’s account was
       memorialized in a typewritten statement, which ASA O’Malley typed while defendant was

           1
            Dr. Schupp also observed two old rib fractures on Mallette’s CT scan that she testified were a
       result of a motor vehicle accident Mallette had been injured in before the incident.

                                                     -5-
       sitting next to him. ASA O’Malley testified that defendant reviewed the completed statement
       and was able to make corrections, which were marked by defendant’s handwritten initials.
       ASA O’Malley then published defendant’s statement to the jury.
¶ 22        In the statement, defendant acknowledged that he was smoking marijuana and drinking
       alcohol in Pinsel’s hotel room with Golston and Stein on the night of the incident. Stein and
       Pinsel told him that a “gay guy” (Mallette) had hit on Stein and said racist remarks to Golston.
       Defendant also learned from them that Mallette had $500 in cash in a money clip and that he
       was staying in the hotel room across the hallway from Pinsel’s room. Defendant stated that
       everyone started talking about robbing Mallette and the plan was that defendant would knock
       on the door and when Mallette opened the door, he and Stein would hold him or knock him out.
       Golston would then enter the room and grab the money, and Pinsel would be the lookout.
¶ 23        Defendant knocked on Mallette’s hotel room door, and when Mallette answered, defendant
       grabbed him, tackled him into the room, and put him into a chokehold, but Mallette did not
       pass out. After a few minutes, Stein entered the room and kicked Mallette while defendant was
       choking him. Stein grabbed something from inside the room, but defendant could not see what
       it was. Stein then left the room, but defendant kept choking Mallette. Mallette tried to bite him,
       so defendant briefly released him but then put him into another chokehold. Mallette then tried
       to grab defendant’s crotch, and defendant “freaked out” because he had been sexually
       assaulted by his brother when he was younger. Defendant worried that he could not leave
       Mallette conscious, so he clasped his hands together and slammed them down on the back of
       Mallette’s neck and then started elbowing Mallette’s spine. Defendant told him that he was
       going to knock him out and kept kicking and punching him while Mallette was on the floor.
       Defendant then stomped on Mallette’s spine with the heel of his right foot “because [the heel]
       is the hardest part of the foot.” Defendant also stomped on Mallette’s head with his heel.
       Mallette stopped moving, and defendant left the room.
¶ 24        Defendant stated that the fight lasted about 30 minutes and, after he left Mallette’s hotel
       room, he went back to his own room and changed his clothes, including the red shoes he had
       been wearing during the fight. Defendant was worried he might have killed Mallette. After
       changing clothes, he met up with Stein, and the two of them went to a gas station. They tried to
       use the credit cards from Mallette’s money clip to pay for gas, but the cards did not work. They
       then went to Denny’s and used one of the debit cards to pay for their food. Defendant stated
       that Stein signed the receipt.

¶ 25                                       B. Defense Witnesses
¶ 26       Schaumburg police officer Troy Stanley testified on behalf of defendant that on August 13,
       2011, he responded to a battery at the Homestead Suites hotel. There, he spoke with Mallette,
       who told him that, after he heard a knock at his hotel room door, he looked though the peephole
       and recognized a black male he had been smoking with outside earlier that night. He opened
       the door, and the black male began punching him and demanded $1000. Officer Stanley
       acknowledged that Mallette did not say anything about the black male choking him or trying to
       break his neck. Mallette told Officer Stanley that the black male left the room after kicking
       him. On cross-examination, Officer Stanley stated that he was the first officer on the scene and
       arrived before the paramedics. He also acknowledged that when he arrived, Mallette was
       bleeding and in obvious pain.


                                                   -6-
¶ 27        Michael Hansen, a firefighter and paramedic for the village of Schaumburg, testified that
       he treated Mallette before he was taken to the hospital. Hansen testified that Mallette told him
       that he was assaulted by three people in his hotel room but did not mention anyone choking
       him or trying to break his neck. Hansen noted that Mallette had swelling and a boot print on his
       face. On cross-examination, Hansen stated that he gave Mallette a Fentanyl IV in the
       ambulance, which is an opiate, and that Mallette complained of pain in his chest and back.
¶ 28        Defendant testified that in August 2011 he was attending Harper College in Palatine,
       Illinois. He attended the college on a full-time sports and educational scholarship, and his
       father paid the remainder of his expenses. Harper College did not have dorms but had an
       arrangement with the Homestead Suites to offer Harper College students discounted rates. On
       August 12, 2011, he was speaking with Stein at the Homestead Suites, and as a result of their
       conversation, defendant went to room 251 at the hotel. He knocked on the door, and Mallette
       opened it and told him to come in. Mallette said “you finally made it,” but defendant had never
       seen Mallette before. Mallette told defendant to “show [him] something,” and defendant
       removed his shirt. Mallette started walking around and touching defendant.
¶ 29        Mallette then asked defendant to perform oral sex on him, and defendant agreed, but then
       Mallette changed his mind and asked if defendant would have anal sex with him. Mallette told
       defendant that if he did not want to, he would pay him to do so, but defendant stated that he did
       not need any money. Mallette asked defendant if he would consider having sexual intercourse
       with him without using a condom, but defendant said that he would not. Defendant started to
       leave, and Mallette asked him why he came up to his room. Mallette then grabbed defendant on
       the arm and asked him where he was going. Defendant pushed Mallette in the chest, and
       Mallette grabbed defendant’s neck and told him to get on the bed. Defendant testified that this
       interaction brought back memories of when he was raped by his older brother when he was 10
       years old.
¶ 30        Defendant was afraid Mallette was going to rape him, so he punched him in the nose.
       Defendant kept punching him and fighting with him and was eventually able to leave the room.
       Defendant called Stein, and the two of them went to Denny’s. Stein paid for their meal, and
       defendant testified that he believed Stein had used his own credit card to pay. Defendant was
       arrested on August 18, 2011, and taken to the police station.
¶ 31        The officers at the police station told defendant that he could go home if he signed a
       statement admitting that he committed a robbery with Stein and Pinsel, but defendant refused
       to sign the statement. Defendant testified that he was interviewed by multiple officers and
       eventually an ASA walked into the interview room with a statement saying that defendant had
       robbed and attacked Mallette. Defendant had not seen the statement before and did not agree
       with its contents but signed it anyway because he thought he would be able to leave if he did so.
       On cross-examination, defendant acknowledged that he did not call police after the incident
       with Mallette.

¶ 32                                   C. Verdict and Sentencing
¶ 33       Following closing argument, the jury found defendant guilty of home invasion and
       robbery. At the subsequent sentencing hearing, defense counsel argued in mitigation that
       defendant had no criminal background and noted defendant’s potential for rehabilitation based
       on his supportive family. Defense counsel also pointed out defendant’s age, 22 years old at the
       time of sentencing, and the fact that he was attending college at the time of offense. Defense

                                                   -7-
       counsel also noted defendant’s “troubled background,” which included being put up for
       adoption by his birth parents and being molested at a young age by his older brother. Defense
       counsel also acknowledged that, for purposes of sentencing, the court would have to determine
       whether Mallette suffered great bodily harm and noted that, although the injuries in this case
       were severe, they were not permanent. In aggravation, the State focused on Mallette’s injuries
       as detailed by Dr. Schupp and contended that based on her testimony defendant caused serious
       harm, which was a factor the court should consider.
¶ 34       In sentencing defendant, the court noted that it found the testimony of Dr. Schupp to be
       particularly significant. The court noted that it already made a finding that Mallette suffered
       great bodily injury, which allowed the court to consider home invasion as a triggering offense
       to the robbery, so that the terms of imprisonment could be imposed consecutively. The court
       stated that it had reviewed all the statutory factors in mitigation and aggravation. The court
       found that “one of the most significant” factors in aggravation was the injuries to Mallette. The
       court also found that defendant’s lack of criminal background was “the significant factor” in
       mitigation. The court thus sentenced defendant, as a Class X offender, to consecutive terms of
       imprisonment of 18 years for home invasion and 5 years for robbery, to be served at a
       minimum of 85% instead of 50% time because of the court’s finding that defendant had caused
       great bodily harm to Mallette. In denying defendant’s motion to reconsider his sentence, the
       court found the fact that defendant caused great bodily harm was shown by the evidence.

¶ 35                                           II. ANALYSIS
¶ 36       On appeal, defendant raises four contentions. First, he asserts that the trial court erred in
       prohibiting him from supporting his claim of self-defense by introducing evidence of
       Mallette’s prior convictions for violent acts. Defendant also asserts that the court’s
       “antagonism and bias” against defense counsel in front of the jury deprived defendant of a fair
       and impartial trial where the case was a “credibility contest” between defendant and the State’s
       witnesses. Defendant further maintains that the court erred in finding that he caused great
       bodily harm to Mallette and increasing his mandatory minimum sentence where that fact was
       not submitted to the jury and found beyond a reasonable doubt. Finally, defendant contends
       that his sentence is excessive in light of his young age, lack of criminal background, and other
       mitigating factors that demonstrate his rehabilitative potential.

¶ 37                                  A. Mallette’s Prior Convictions
¶ 38        Defendant first contends that the court erred in prohibiting him from supporting his theory
       of self-defense by introducing evidence of Mallette’s prior convictions for violent acts.
       Defendant asserts that his defense at trial was that it was Mallette who initiated the fight after
       defendant refused his sexual advances and defendant injured Mallette while attempting to
       protect himself. Defendant intended to support his defense, pursuant to People v. Lynch, 104
       Ill. 2d 194 (1984), with evidence of Mallette’s prior criminal convictions from 1991 for battery
       and for resisting arrest.

¶ 39                                      1. Standard of Review
¶ 40       A trial court’s ruling regarding the admission of evidence will not be reversed on appeal
       absent an abuse of discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). A court abuses its
       discretion where its decision is arbitrary, fanciful, or unreasonable, or where no reasonable

                                                   -8-
       person would adopt the view taken by the trial court. Id.

¶ 41                                         2. People v. Lynch
¶ 42        Where a defendant raises a theory of self-defense, he may offer evidence of the victim’s
       aggressive or violent character under one of two circumstances. Lynch, 104 Ill. 2d at 199-200.
       If the defendant knew of the victim’s violent character or prior criminal acts, the evidence may
       be offered to support the defendant’s contention that he reasonably believed the use of force in
       self-defense was justified. Id. at 200. That circumstance is not present in this case, as defendant
       never claimed to be aware of Mallette’s criminal record prior to the incident in question. A
       defendant may also present evidence of the victim’s violent character where there are
       conflicting witness accounts about how the events in question transpired and the evidence
       proffered by the defendant serves to bolster his claim that the victim was the initial aggressor.
       Id. Defendant asserts that this second prong of Lynch applies in this case. Evidence under the
       second prong of Lynch is admissible only if it constitutes “reasonably reliable evidence of a
       violent character.” Id. at 201. This court has held that the supreme court in Lynch “stopped
       short of holding that refusal to admit such evidence [of the victim’s prior convictions for
       violent crimes] is per se prejudicial and, thus, preserved the trial court’s discretion to exclude it
       based upon the facts of each case.” People v. Armstrong, 273 Ill. App. 3d 531, 534 (1995).

¶ 43                                   3. Mallette’s Prior Convictions
¶ 44       Prior to trial, defendant filed a motion in limine, which contained his contentions pursuant
       to Lynch. This motion, however, is not included in the record filed on appeal. Nonetheless, our
       review of this issue is not hindered where there is sufficient information to support the trial
       court’s ruling included in the report of proceedings. The court discussed the prior convictions
       with defense counsel and the State prior to trial and instructed defense counsel to get more
       information about the convictions but noted that the convictions occurred 21 years before the
       incident. The court therefore granted the State’s request that defense counsel be precluded
       from mentioning Mallette’s prior convictions in opening statements so that the court could
       determine how relevant and probative the convictions were.
¶ 45       Prior to cross-examining Mallette, the court held a sidebar outside the presence of the jury
       where defense counsel informed the court about the circumstances leading to Mallette’s
       convictions for resisting arrest and battery.2 The two offenses precipitating the convictions
       occurred “four or five days apart from each other” and were pled together. The complaint
       alleged that police officers arrived at an apartment in response to a fight in progress between
       two male subjects. The officers knocked on the apartment door, and Mallette answered and
       started yelling at the officers. The officers attempted to enter the apartment, and Mallette
       closed the apartment door on one officer’s hands. The officers then entered the apartment to
       handcuff Mallette, and he “resisted some more.”

           2
            We note that the State and defense counsel disagreed over whether the prior conviction was for
       “straight battery” or for domestic battery. Defense counsel asserted that the complaint charged Mallette
       with domestic battery, and in his brief before this court, defendant asserts that the prior conviction was
       for domestic battery. The State maintains that the victim was a police officer and, therefore, the charge
       must have been for battery. We find the distinction is not relevant to either the trial court’s ruling on this
       issue or to our review of the court’s ruling.

                                                         -9-
¶ 46       After hearing argument from both defense counsel and the State, the court ruled that it was
       going to exclude the evidence of the prior convictions “simply on the basis that [they were] 21
       years old.” The court noted that although there was battery against a police officer, the “sole
       reason” the court was excluding the evidence of the prior convictions was the “remoteness in
       time from the date that the incident [in this case] occurred and the date that [Mallette] was
       convicted of [the prior] offense.” Defense counsel asked the court if length of time was another
       element of Lynch, but the court stated that it was within its discretion to not allow the prior
       convictions in as evidence. Following Mallette’s testimony, the court clarified its ruling,
       stating that it did not allow evidence of the prior convictions to be presented to the jury because
       the only evidence that had been presented at trial so far was Mallette’s testimony, which did
       not include any indication that defendant acted in self-defense. The court also noted that the
       court in Lynch discussed the timing of the prior convictions, noting that the prior convictions in
       that case were “very recent” in relation to the incident at issue. Accordingly, the court observed
       that because the supreme court in Lynch considered the length of time that had passed since the
       prior convictions, the trial court could do so as well in this case.

¶ 47                                   4. Remoteness Under Lynch
¶ 48        Defendant now contends that the court erred in excluding evidence of Mallette’s prior
       convictions solely on the basis of their remoteness in time. Defendant asserts that the passage
       of time is not a relevant consideration in determining whether to admit evidence pursuant to
       Lynch and that it was proper for him to present evidence of Mallette’s violent character through
       the prior convictions to support his claim that Mallette was the initial aggressor. Defendant
       maintains that the age of the convictions is a consideration for the jury in determining the
       weight of the evidence, rather than a consideration for the court in determining the
       admissibility of the evidence.
¶ 49        Contrary to defendant’s contentions, in interpreting Lynch, both this court and our supreme
       court have implicitly recognized that remoteness in time is a valid consideration in determining
       whether it is reasonable for the trial court to allow the admission of evidence pursuant to
       Lynch. See, e.g., People v. Morgan, 197 Ill. 2d 404, 455-57 (2001) (finding that the court did
       not err in excluding Lynch evidence on the grounds of remoteness of the prior conviction);
       People v. Ellis, 187 Ill. App. 3d 295, 301-02 (1989) (excluding evidence of a victim’s prior
       convictions because the conviction occurred more than 10 years before the defendant’s trial).
       Although defendant contends that neither Morgan nor Ellis stand for the proposition that a
       circuit court may consider remoteness in time in determining admissibility under Lynch, we
       decline to adopt defendant’s narrow reading of these cases.
¶ 50        In Morgan, the supreme court noted that it failed to see how the testimony of a witness’s
       childhood from “many years earlier” was relevant to the claim of self-defense. Morgan, 197
       Ill. 2d at 457. Likewise, in Ellis, this court noted that under both Lynch and People v.
       Montgomery, 47 Ill. 2d 510, 516-19 (1971), “the court could have also excluded the admission
       of the victim’s 1972 conviction because it occurred more than 10 years before the trial in this
       matter.” Ellis, 187 Ill. App. 3d at 301-02. Although the court in Ellis was discussing the
       evidence under both the Montgomery standard, which has an explicit 10-year limitation period,
       and the Lynch standard, there is nothing in the decision to suggest that the remoteness analysis
       applied solely to the evidence under Montgomery, as defendant suggests, and not under both
       standards.

                                                   - 10 -
¶ 51        Defendant, nonetheless, relies on People v. Gibbs, 2016 IL App (1st) 140785, ¶ 34, where
       this court affirmed the trial court’s decision to allow the defendant to present evidence of the
       victim’s 14-year-old conviction for domestic violence via stipulation. The defendant in Gibbs
       sought to question the victim on cross-examination regarding the prior conviction, but the trial
       court required the prior conviction to be introduced via stipulation only. Id. In affirming the
       trial court’s ruling, this court found that “[t]he trial court certainly could have exercised its
       discretion to allow limited questioning of [the victim], but given the age of the conviction and
       its factual dissimilarity to the charge in this case, it was likewise appropriate to address the
       matter via stipulation.” (Emphasis added.) Id. Thus, although the court in Gibbs affirmed the
       trial court’s ruling to allow admission of the evidence, the court also acknowledged that the age
       of the conviction was a relevant factor for the trial court to consider in determining how the
       evidence should have been presented at trial. The court also recognized that these
       considerations are within the discretion of the trial court and the trial court’s ruling on these
       matters should not be reversed absent an abuse of that discretion. Id. ¶ 33 (citing People v.
       Coleman, 347 Ill. App. 3d 266, 269 (2004)). Thus, the court deferred to the trial court’s
       discretion and affirmed its ruling based on the specific factors present in that case. We find the
       same deference is warranted here. See Armstrong, 273 Ill. App. 3d at 534.
¶ 52        Moreover, although the trial court in this case stated that its ruling was based solely on the
       remoteness in time, we observe that the court also could have excluded the evidence of
       Mallette’s prior convictions because of its lack of relevance.3 Although the evidence may have
       indicated that Mallette had a lack of respect for police officers or had the capacity to act
       insolently, it did not indicate that Mallette was physically violent toward others. There was no
       evidence that Mallette intentionally tried to attack the officers—the battery apparently
       occurred when Mallette slammed the door on the officer’s hand—or anyone else or even
       threatened violence. There was no evidence presented regarding the “fight in progress”
       between Mallette and the other individual at his apartment. Thus, the proffer did not constitute
       reasonably reliable evidence of Mallette’s violent character as required for admissibility under
       Lynch. Lynch, 104 Ill. 2d at 201. Accordingly, we cannot say that the trial court’s decision to
       preclude admission of Mallette’s prior convictions was so arbitrary or fanciful that it
       constituted an abuse of the trial court’s discretion. Because we find that the court did not err in
       excluding this evidence, we need not address defendant’s contention that the court’s error was
       not a harmless error. See People v. Nash, 2012 IL App (1st) 093233, ¶ 33.

¶ 53                                  B. The Trial Judge’s Bias
¶ 54       Defendant next contends that the trial judge’s “antagonism and bias” toward defense
       counsel in front of the jury denied him a fair and impartial trial, where the case was a
       “credibility contest” between defendant and the State’s witnesses and the trial judge’s
       comments to defense counsel damaged defendant’s credibility in the eyes of the jury.
       Defendant asserts that following an exchange outside of the jury’s presence, the trial judge
       displayed antagonism toward defense counsel during defendant’s testimony. Defendant

           3
            Although the trial court did not rely on the lack of relevance of the prior convictions in precluding
       defendant from introducing them as evidence, we note that we may affirm the trial court’s ruling on any
       basis apparent from the record, regardless of whether it was relied upon by the trial court. See People v.
       Gumila, 2012 IL App (2d) 110761, ¶ 56.

                                                      - 11 -
       maintains that the trial judge’s “repeated[ ] berating” of defense counsel in front of the jury
       was highly prejudicial and suggested to the jury that defendant’s testimony was not truthful.

¶ 55                                              1. Forfeiture
¶ 56       Initially, we observe that defendant has forfeited this issue for review. In order to preserve
       an issue for appeal, defendant must specifically object at trial and raise the specific issue again
       in a posttrial motion. People v. Woods, 214 Ill. 2d 455, 470 (2005). In this case, defendant
       neither objected at trial, nor raised the issue in a posttrial motion. Defendant acknowledges the
       forfeiture, but contends that we should review this issue under plain error.

¶ 57                                            Plain Error
¶ 58       The plain error rule allows a reviewing court to consider unpreserved claims of error
       regardless of forfeiture. People v. Thompson, 238 Ill. 2d 598, 613 (2010). Plain error applies
       when there is a clear or obvious error and the evidence is so closely balanced that the error
       would change the outcome of the case or when there is a clear or obvious error that is so serious
       that it affected the fairness of defendant’s trial. People v. Piatkowski, 225 Ill. 2d 551, 565
       (2007). Defendant contends that both prongs of the plain error analysis could apply to our
       review of this issue. The first consideration in addressing defendant’s plain error argument is
       determining whether an error occurred, which requires a “ ‘ “substantive look” ’ ” at the issue.
       People v. Hudson, 228 Ill. 2d 181, 191 (2008).

¶ 59                                       2. Standard of Review
¶ 60        Every defendant, regardless of the nature of the proof against him, is entitled to a trial that
       is free from improper and prejudicial comments on the part of the trial judge. People v. Stokes,
       293 Ill. App. 3d 643, 648 (1997). Allegations of judicial bias or prejudice must be viewed in
       context and should be evaluated in terms of the trial judge’s specific reaction to the events
       taking place. People v. Jackson, 205 Ill. 2d 247, 277 (2001). Remarks belittling defense
       counsel or demonstrating hostility to defense counsel may prevent the defendant from
       receiving a fair trial. People v. Harris, 123 Ill. 2d 113, 137 (1988). However, the fact that a
       judge displays displeasure or irritation with an attorney’s behavior is not necessarily evidence
       of judicial bias against the defendant or his counsel. People v. Urdiales, 225 Ill. 2d 354, 426
       (2007) (citing Jackson, 205 Ill. 2d at 277). “[I]n order for a trial judge’s comments to constitute
       reversible error, a defendant must demonstrate that the comments constituted a material factor
       in the conviction or were such that an effect on the jury’s verdict was the probable result.”
       Harris, 123 Ill. 2d at 137. We review de novo the question of whether the trial judge’s conduct
       requires reversal of the judgment. See People v. McLaurin, 235 Ill. 2d 478, 485 (2009).

¶ 61                               3. Discussion Before Defense Case
¶ 62       Defendant contends that the trial judge’s antagonism toward defense counsel began
       following a discussion held outside the jury’s presence with the trial judge, defense counsel,
       and the State. During this discussion, which took place after the close of the State’s case,
       defense counsel informed the trial judge that it would be calling Officer Stanley, paramedic
       Hansen, and defendant as witnesses. The trial judge noted that Hansen was not in court that
       day, but defense counsel informed the trial judge that Hansen was on “phone hold” and that he


                                                    - 12 -
       would be at the courthouse as soon as defense counsel called him. The trial judge told defense
       counsel to call Hansen immediately and that defendant could testify second and Hansen last so
       that the court did not have to stop the trial. Defense counsel objected, stating that such a
       decision would violate defendant’s constitutional rights to present his defense. Defense
       counsel stated that he would call Hansen now, and the trial judge told defense counsel to “[g]et
       him on the phone right now. Right now. Go in there and get him on the phone. Right now. Call
       him. *** I want to see how far away he is.”
¶ 63        Defense counsel then informed the trial judge that he was texting Hansen, and the trial
       judge told defense counsel that he was “playing games” and that he should have had Hansen at
       the courthouse ready to testify. After further colloquy, the trial judge asked defense counsel to
       make an offer of proof as to what he believed Hansen would testify. Defense counsel informed
       the trial judge that Hansen would testify that Mallette told him he was attacked by three men
       and did not mention anyone choking him or trying to snap his neck. He would further testify
       that Mallette seemed to be in good physical and mental condition. The following then took
       place:
                    “THE COURT: All right, listen. [Officer Stanley is] going to testify next. If
                [Hansen] is here or if he calls back and he’s in the building, he can go on next. If not,
                I’m not waiting. You can stip out the testimony. You can work out a stipulation as to
                what is in that report. [Defense counsel], he was here yesterday. I—
                    [Defense Counsel]: Judge, can I—
                    THE COURT: No, no, no, no, no. I’m talking now. Then you get to respond. I get to
                talk.
                                                    ***
                    THE COURT: All of you had time to speak with [Hansen when he was at the
                courthouse the day before] so it wasn’t—the State insisted in making him available to
                you. I saw you speak with him.
                    I don’t know why he’s not here, but you should have called him over lunch. You
                just told me ten minutes ago that you hadn’t called him and he was on phone hold. I
                cannot stop a jury. I cannot release the jury today. I cannot stop them just to bring
                [Hansen] in when this testimony can easily be stipped out between the parties. So for
                that reason, I’m not going to wait for him.”
¶ 64        The trial judge then told defense counsel that his two options were to work out a stipulation
       of Hansen’s testimony with the State or to have defendant testify after Officer Stanley and have
       Hansen testify last. Defense counsel protested, stating that he preferred live witnesses on the
       stand and should not be “forced” to stipulate to testimony if live testimony was available. The
       trial judge told defense counsel that he was “holding this entire courtroom and a jury in a
       hostage situation.” The trial judge noted that Hansen would testify consistently with the
       information in his report and the State was willing to stipulate to all of his testimony. The trial
       judge expressed her desire to keep the jury trial on schedule and have closing arguments and
       jury deliberations the following day. The trial judge explained how she was considering the
       schedule of all of the attorneys, the witnesses, and the jurors and stated that she had to make a
       “judgment call.”
¶ 65        The ASA then informed the trial judge that court personnel had spoken to Hansen and
       Hansen was “under the understanding that he was testifying [the following day.]” The trial


                                                   - 13 -
       judge asked that ASA if she was saying that Hansen was never put on phone hold, and the ASA
       confirmed that Hansen thought he would be testifying the following day. The trial judge
       concluded the discussion by telling defense counsel that he was “lying to the court” and
       “playing games.” The trial judge stated that “[t]he jury is going to know that this is the defense
       case, too, that we’re stopping at the defense case. *** I’m not going to tell them. I’m not going
       to say a word, but smart people figure these things out.” Defense counsel told the trial judge
       that he did not mean any disrespect, but the trial judge replied that “[y]ou are disrespectful to
       the Court, and you’re disrespectful to every person’s time in this room.” The trial judge
       informed defense counsel that he had “caused significant damage to your reputation with me.”
       The trial then resumed with Officer Stanley testifying for defendant. The case was continued
       until the following morning where Hansen testified, followed by defendant.

¶ 66                            4. Comments During Defendant’s Testimony
¶ 67        Defendant contends that following this exchange, the trial judge displayed “antagonism
       and bias” toward defense counsel in the presence of the jury. Defendant identifies several
       statements made by the court to defense counsel during defendant’s testimony, which he
       contends illustrate the trial judge’s bias and “repeated[ ] berating” of defense counsel.
       Defendant presents many of these statements without context; however, as noted, allegations
       of judicial bias or prejudice must be viewed in context and should be evaluated in terms of the
       trial judge’s specific reaction to the events taking place. Jackson, 205 Ill. 2d at 277.
       Accordingly, we will examine the trial judge’s comments to defense counsel in light of the
       context in which they were said and the surrounding circumstances.
¶ 68        During defendant’s testimony, the trial judge repeatedly instructed defense counsel to
       return to the podium while asking defendant questions and instructed defendant to speak
       louder so that everyone could hear him. Defense counsel requested a sidebar in which he stated
       that the trial judge had “displayed irritability to [defendant.]” The trial judge disagreed, stating
       that “I asked him to speak up because he’s whispering ***. And the jury—I can see the jury
       straining to hear him.” The trial judge further explained that she asked defense counsel to
       return to the podium because she believed that it helps the witness speak louder when the
       attorney is further away.
¶ 69        Following this sidebar, defendant specifically identifies several statements by the trial
       judge that he believes demonstrated the trial judge’s antagonism and bias. The first instance
       identified by defendant occurred when defense counsel was asking defendant about his
       interactions with the officers in the vehicle after his arrest.
                    “[Defense Counsel]: And what else was said to you [by the officers in the police
                vehicle]?
                    THE COURT: [Defense counsel], you’re not laying a proper foundation.
                    [Defense Counsel]: I’m sorry, Judge.
                    [Defense Counsel]: What was the demeanor of the officers as they were talking to
                you?
                    THE COURT: That is not foundation, ask a foundational question.
                    [Defense Counsel]: Who was driving the vehicle? How many officers were in the
                car with you?
                    [Defendant]: There were two officers.”

                                                    - 14 -
Defendant then testified regarding the circumstances leading to him being interviewed by
officers at the Schaumburg police department.
             “[Defense Counsel]: Did they ask you questions?
             [Defendant]: Yes
             [Defense Counsel]: What were they telling you?
             [Assistant State’s Attorney]: Objection.
             THE COURT: Sustained.
             [Defense Counsel]: Did they ask you questions about your background?
             [Defendant]: Yes, they did.
             [Defense Counsel]: And did you tell them who you were and where you grew up?
             [Defendant]: Yes, I did.
             [Assistant State’s Attorney]: Objection.
             THE COURT: Sustained.
             [Defense Counsel]: At any point in time did the officers, any of those two officers
        in the first interview room with you, did they ever ask you anything related to this
        alleged crime that occurred?
             [Defendant]: Yes.
             [Defense Counsel]: And what were they telling you in relation to this alleged crime
        that occurred on August 13, 2011?
             [Assistant State’s Attorney]: Objection.
             THE COURT: Sustained.
             [Defense Counsel]: Were they asking you if you had committed a crime on August
        13, 2011?
             [Defendant]: Yes.
             [Assistant State’s Attorney]: Objection.
             THE COURT: Sustained.
             [Defense Counsel]: Judge, sidebar.
             THE COURT: [Defense counsel], you have to lay a foundation. Ask a proper
        question. Rephrase it. And go back to the podium.
                                             ***
             [Defense Counsel]: The two officers that were talking to you, where were they
        seated?
             [Defendant]: Well, they were seated on—one was seated across from me and one
        was like almost to the side at the table.
             Q. Which one of the officers was talking to you?
             A. Well, I don’t remember which one was actually questioning me.
             Q. Were both officers questioning you?
             A. Yes, both officers asked me questions.
             Q. And how was the demeanor of the officers as they were questioning you?
             A. They seemed upset.
             Q. Were you upset?

                                           - 15 -
                   A. I wasn’t really upset, no, I was really scared because they were telling me I
               committed a robbery and I have never been locked up before.
                   [Assistant State’s Attorney]: Objection.
                   THE COURT: [Defense counsel].
                   [Defense Counsel]: Judge, I can’t move to strike the answer.
                   THE COURT: No, you can’t[,] but you can ask proper questions, proper direct
               examination questions.
                   [Defense Counsel]: I believe I have.
                   Q. Mr. Barnes, when you—when the police officers accused you of being involved
               in this so-called crime, did you tell them—
                   THE COURT: Stop for one second, I need to do this.
                   The jury is not to consider what this defendant answered. The objection is sustained
               and the jury is to disregard the last answer the witness gave.”
¶ 70        Viewed in context, these comments by the trial judge do not suggest antagonism or bias by
       the trial judge, but rather show the trial judge’s rulings on the State’s objections and her
       repeated reminders to defense counsel to establish foundation for his questions. Laying a
       foundation involves “[i]ntroducing evidence of certain facts needed to render later evidence
       relevant, material or competent.” Black’s Law Dictionary (10th ed. 2014). Here, defense
       counsel was skipping this crucial element of defendant’s testimony, and the trial judge was
       continually reminding him to lay a proper foundation before posing further questions. Defense
       counsel failed to lay a proper foundation and simply asked defendant what the officers told him
       while inserting the relevant information into the question rather than allowing defendant to
       describe the relevant information through his testimony. The State properly objected to these
       questions and the trial judge ruled on the State’s objections, informing defense counsel that she
       was sustaining the State’s objections because defense counsel had failed to lay a proper
       foundation. As this court has recognized, the court may exercise its role to control the trial, and
       comments made with a valid basis do not display a specific bias or prejudice against defense
       counsel. People v. Garrett, 276 Ill. App. 3d 702, 713 (1995). The same analysis applies to the
       other statements of the trial judge identified by defendant.
¶ 71        Defendant refers to the trial judge’s comments later in his testimony admonishing defense
       counsel for leading defendant and for testifying for defendant. Defendant asserts that these
       comments were particularly damaging where they suggested to the jury that defendant was
       being coached through his testimony and was not testifying truthfully. Like the trial judge’s
       other comments, however, when viewed in context, they do not show the antagonism or bias
       that defendant suggests. Rather, as with the previously examined comments, they show the
       trial judge ruling on the State’s objections and informing defense counsel how to properly
       examine defendant as a witness on direct examination.
                   “[Defense Counsel]: At some point in time did you ask [sic] these officers that you
               wanted to speak to your coach?
                   [Assistant State’s Attorney]: Objection.
                   THE COURT: Sustained.
                   [Defense Counsel]: Did you ask them—
                   [Assistant State’s Attorney]: Objection.


                                                   - 16 -
           THE COURT: Sustained. [Defense Counsel], this is direct examination you can’t
       cross examine the witness.
           [Defense Counsel]: I’m sorry, Judge.
           THE COURT: Ask proper questions.
           [Defense Counsel]: Did you tell the police officers that you wanted to talk to
       anyone?
           [Defendant]: Yes.
           [Assistant State’s Attorney]: Objection.
           THE COURT: All right, the answer will stand. Ask another question. But please,
       [Defense Counsel], you can’t lead the witness.
           [Defense Counsel]: Judge, I’m not leading my witness.
           THE COURT: Ask him what he said if anything, please.
                                             ***
           [Defense Counsel]: At some point in time, Mr. Barnes, did you understand that the
       officers [were] referring to Mr. Mallette?
           [Assistant State’s Attorney]: Objection.
           THE COURT: Sustained. [Defense counsel], you cannot lead the witness on direct
       examination.
           [Defense Counsel]: Sorry, Judge.
           THE COURT: Please rephrase your question.
           [Defense Counsel]: Thank you. At some point in time did the officers tell you who
       the victim was?
           [Defendant]: Yes, they did.”
Defendant then testified that the officers left the interview room and an ASA entered the room
with a document detailing his involvement in the incident and asked defendant to sign the
statement. Defendant did not agree to the contents of the document so he refused to sign it, and
the ASA left the room and two other officers came into the room.
           “[Defense Counsel]: When the new police officers arrived after the attorney walked
       out, you said you weren’t sure how long had passed, did you sign some documents
       when they entered the room?
           [Assistant State’s Attorney]: Objection.
           [Defendant]: No.
           THE COURT: The witness said no so the answer will stand. [Defense counsel].
           [Defense Counsel]: I’ll round it up, Judge.
           THE COURT: No, you have to ask open-ended questions, you cannot testify for
       your client.
           [Defense Counsel]: Judge, I am not testifying for my client.
           THE COURT: Please rephrase the question.
           [Defense Counsel]: Judge, I’ll make a record. You made a record in front of the
       jury.
           THE COURT: Please rephrase the question.


                                           - 17 -
                   [Defense Counsel]: I am not testifying for my client.
                   THE COURT: [Defense counsel], please rephrase your question.
                   [Defense Counsel]: Mr. Barnes.
                   [Defendant]: Yes, sir.
                   [Defense Counsel]: Did you at any point in time sign any documents?
                   [Defendant]: Yes, I did.”
¶ 72        Despite defendant’s contentions, it is clear from the record that rather than displaying
       “antagonism and bias” toward defense counsel, that the trial judge was ruling on the State’s
       objections and advising defense counsel how to properly question defendant on direct
       examination. As the State’s objections suggest and the trial judge’s rulings show, defense
       counsel was asking defendant improper leading questions on direct examination, i.e., his
       questions were suggesting the answer by putting into defendant’s mind the words or thoughts
       of the answer. See People v. Lane, 256 Ill. App. 3d 38, 59 (1993). Generally, it is improper to
       lead a witness except on cross-examination (id. at 59-60), and we find nothing inappropriate
       about the trial judge’s comments, which merely served to inform defense counsel of the
       reasons that the trial judge was sustaining the State’s objections, to instruct defense counsel
       how to proceed to avoid further objections, or to ask him to rephrase the question to avoid
       impropriety. The trial judge’s comments, read in context, do not suggest that the trial judge
       was indicating to the jury that defendant was falsifying his testimony with his counsel’s
       assistance, as defendant suggests, but rather show the trial judge’s rebuking of defense counsel
       after repeatedly admonishing him to not ask leading questions of defendant. As the record
       shows, the trial judge permitted defense counsel to proceed uninterrupted when he asked
       defendant proper, open-ended questions.
¶ 73        Defendant identifies a final exchange between defense counsel and the trial judge, during
       which defendant contends the trial judge exhibited “unprofessional sarcasm” toward defense
       counsel. During the State’s cross-examination of defendant, defense counsel objected to the
       relevance of one of the State’s questions. After the trial judge overruled defense counsel’s
       objection, defense counsel stated: “Sidebar.” The trial judge responded, “Judge, please, could
       we have a sidebar, is that what you meant to say?” The trial judge then held a sidebar after
       defense counsel replied, “Excuse me, Judge, I want to have a sidebar.” This exchange does not
       represent “repeated[ ] berating” of defense counsel as defendant suggests. More importantly,
       defendant fails to establish how the trial judge’s “comments constituted a material factor in the
       conviction or were such that an effect on the jury’s verdict was the probable result” (Harris,
       123 Ill. 2d at 137), where the court merely ruled on the State’s objections and instructed
       defense counsel how to proceed to avoid further objections. This exchange between the trial
       judge and defense counsel does nothing to support defendant’s argument in this regard.
¶ 74        We also note that although defendant does not directly contest the sufficiency of the
       evidence presented at trial to sustain his conviction, he repeatedly contends that the evidence at
       trial was closely balanced and came down to a “credibility contest” between the State’s
       witnesses and defendant. We believe defendant far overstates the closeness of the evidence
       presented. Mallette’s version of the incident was corroborated by the expert testimony of Dr.
       Schupp regarding Mallette’s injuries, the testimony of Stein and Golston, defendant’s
       statement to ASA O’Malley, the testimony of the police officers, and the physical evidence
       including the blood on the bottom of defendant’s shoe, which matched the buccal swab taken


                                                   - 18 -
       from Mallette. Defendant’s version of the events was evidently rejected by the jury and
       defendant has failed to demonstrate that the court’s comments to defense counsel influenced
       that result. Harris, 123 Ill. 2d at 137. We recognize the minor inconsistencies among the
       witnesses’ testimony that defendant identifies, i.e., what time the attack occurred, how many
       people attacked Mallette, and whether he was choked or not; however, these minor
       discrepancies do not create a reasonable doubt as to defendant’s guilt, nor do they indicate that
       the evidence was closely balanced in light of the other evidence presented. People v. Lee, 376
       Ill. App. 3d 951, 956 (2007) (citing People v. Crespo, 118 Ill. App. 3d 815, 819 (1983)).
¶ 75        We further find the authority relied upon by defendant in support of this contention
       unpersuasive. In People v. Mitchell, 228 Ill. App. 3d 167, 169-70 (1992), the trial judge
       “mock[ed]” defense counsel by commenting on his questions of the witnesses and remarking
       on the physical evidence presented. In addition, the trial judge displayed “direct hostility”
       toward the defendant during defense counsel’s direct examination and interrupted the
       defendant’s testimony to interject the judge’s own opinion of the testimony. Id. at 170.
       Following the State’s objection to one of defense counsel’s questions of defendant, the trial
       judge stated that “ ‘it’s quite obvious there was no conversation like the one you just made
       up.’ ” Id. This court also found that the trial judge’s bias was evident through his inconsistent
       rulings of law. Id. at 171. During opening statements, the trial judge permitted the State to
       explain the legal standards to be applied to the evidence but repeatedly interrupted defense
       counsel sua sponte when he tried to do the same. Id.
¶ 76        Here, we cannot say the trial judge’s conduct in this case rose to the level of the conduct
       found prejudicial in Mitchell. The trial judge here did not display hostility toward defendant,
       did not make inconsistent rulings of law, and did not interrupt defense counsel sua sponte
       during arguments. All of the trial judge’s remarks were made either in response to the State’s
       objections, to ask defense counsel to rephrase a question into a proper form for direct
       examination, or in response to defense counsel’s request for a sidebar. Crucially, the court
       made no remarks on the evidence presented and only told defense counsel to stop testifying for
       defendant in an effort to prevent defense counsel from asking leading questions on direct
       examination. Following the court’s admonishments, the court permitted defense counsel to
       properly elicit the testimony without comment.
¶ 77        We likewise find Stokes, 293 Ill. App. 3d at 648, distinguishable where in that case, the
       trial judge interrupted defense counsel’s cross-examination of a witness and stated that the
       cross-examination was driving him “ ‘crazy.’ ” The judge also suggested that maybe he could
       do a better job than defense counsel and told the jury that they could ignore defense counsel’s
       cross-examination of another witness: “ ‘I don’t know where we are going. I am telling you
       something right now, ladies and gentlemen, when and if this is not tied up, all this stuff you can
       ignore.’ ” Id. The trial judge then asked defense counsel if he was going to start crying. Id. at
       649.
¶ 78        The trial judge’s comments in the case at bar are clearly distinguishable from the
       comments made by the trial judge in Stokes that this court found served to “belittle[ ]” defense
       counsel and suggest to the jury the judge’s opinion of defense counsel and the case. Id. As
       discussed, the trial judge’s comments in this case served to exercise its role to control the trial
       by ruling on the State’s objections and direct defense counsel how to proceed. The trial judge’s
       comments were made with a valid basis (see Garrett, 276 Ill. App. 3d at 713), did not suggest
       the trial judge’s opinion of the evidence being presented, and did not display a specific bias or

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       prejudice against defense counsel through unwarranted comments as in the cases cited by
       defendant. Accordingly, we find no error warranting plain error review and honor defendant’s
       forfeiture of this issue. See People v. Johnson, 238 Ill. 2d 478, 491 (2010).

¶ 79                                       C. Section 3-6-3(a)(2)(iii)
¶ 80        Defendant next contends that the trial court erred when it sentenced him to serve his
       consecutive sentences at 85% time, rather than 50% time, based on its finding that he caused
       great bodily harm to Mallette. Defendant asserts that section 3-6-3(a)(2)(iii) of the Unified
       Code of Corrections (Unified Code) (730 ILCS 5/3-6-3(a)(2)(iii) (West 2010)), which the trial
       court used to determine that he should serve his sentence at 85% time, is unconstitutional on its
       face following the United States Supreme Court’s ruling in Alleyne v. United States, 570 U.S.
       99, 133 S. Ct. 2151 (2013), which expanded on the Supreme Court’s ruling in Apprendi v. New
       Jersey, 530 U.S. 466 (2000).4 Defendant contends that this section is unconstitutional because
       it allows the trial court to use a fact in sentencing to increase his mandatory minimum sentence
       without submitting that element to the jury to determine that the factual predicate exists
       beyond a reasonable doubt.
¶ 81        In Apprendi, the Supreme Court held that “[o]ther than the fact of a prior conviction, any
       fact that increases the penalty for a crime beyond the prescribed statutory maximum must be
       submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490. The Court explained
       that the difference between an element of an offense, for which defendant has a right to a jury
       trial and proof beyond reasonable doubt, and a sentencing factor, which can be decided by a
       judge, is whether “the required finding expose[s] the defendant to a greater punishment than
       that authorized by the jury’s guilty verdict.” Id. at 478-79, 494. The Supreme Court expanded
       on Apprendi more than a decade later in Alleyne. In Alleyne, the Supreme Court held that “any
       fact that increases the mandatory minimum [sentence] is an ‘element’ [of the crime] that must
       be submitted to the jury [and found beyond a reasonable doubt].” (Emphasis added.) Alleyne,
       570 U.S. at ___, 133 S. Ct. at 2155. The Court explained that the “touchstone” for determining
       whether a fact must be found by a jury beyond a reasonable doubt is “whether the fact
       constitutes an ‘element’ or ‘ingredient’ of the charged offense.” Id. at ___, 133 S. Ct. at 2158
       (Thomas, J., joined by Ginsburg, Sotomayor, and Kagan, JJ.). The Court noted, however, that
       not all factual findings that affect a sentence must be made by a jury:
                “Our ruling today does not mean that any fact that influences judicial discretion must
                be found by a jury. We have long recognized that broad sentencing discretion,
                informed by judicial factfinding, does not violate the Sixth Amendment. See, e.g,
                Dillon v. United States, [560 U.S. 817, 828-89 (2010)] (‘[W]ithin established limits[,] .
                . . the exercise of [sentencing] discretion does not contravene the Sixth Amendment
                even if it is informed by judge-found facts’ (emphasis deleted and internal quotation
                marks omitted)); Apprendi, [530 U.S. at 481] (‘[N]othing in this history suggests that it
                is impermissible for judges to exercise discretion—taking into consideration various
                factors relating both to offense and offender—in imposing a judgment within the range


           4
            Although defendant acknowledges that he forfeited this issue by failing to raise it before the trial
       court, we recognize that defendant may challenge the facial constitutionality of a statute at any time.
       People v. Wagener, 196 Ill. 2d 269, 279 (2001).

                                                      - 20 -
               prescribed by statute’).” (Emphasis in original.) Id. at ___, 133 S. Ct. at 2163 (majority
               op.).
¶ 82       Here, the trial court sentenced defendant to serve his consecutive 23-year term of
       imprisonment for home invasion and robbery at 85% under section 3-6-3(a)(2)(iii) of the
       Unified Code. That section is part of the “truth-in-sentencing” scheme that “the Department of
       Corrections uses to calculate good-conduct credit.” People v. Salley, 373 Ill. App. 3d 106, 109
       (2007). Under the Unified Code, an incarcerated individual generally receives day-for-day
       good-conduct credit. 730 ILCS 5/3-6-3(a)(2.1) (West 2010). If, however, defendant is
       convicted of certain enumerated offenses, including home invasion, and the court finds that
       defendant caused “great bodily harm” to a victim in the commission of that offense, the
       defendant will receive “no more than 4.5 days of good conduct credit for each month of his or
       her sentence of imprisonment.” 730 ILCS 5/3-6-3(a)(2)(iii) (West 2010); Salley, 373 Ill. App.
       3d at 109.
¶ 83       Defendant asserts that Section 3-6-3(a)(2)(iii) requires the trial court to determine whether
       defendant caused “great bodily harm” upon its own review of the evidence. Defendant
       contends that such a finding violates Alleyne because it raises the mandatory minimum
       sentence defendant must serve by raising the “minimum floor for a defendant from 50% time
       to 85% time.”
¶ 84       Although this court has not addressed the constitutionality of section 3-6-3(a)(2)(iii) in
       light of the Supreme Court’s ruling in Alleyne, we find this court’s analysis in its
       post-Apprendi precedent relevant to the issue before us. In People v. Robinson, 383 Ill. App. 3d
       1065, 1071 (2008), this court explained that section 3-6-3 “d[id] not change the prescribed
       maximum penalty of the underlying offense” although we recognized that it “may well affect
       the sentence defendant ultimately serves.” This court concluded that the statute did not violate
       Apprendi because it did not affect the sentence imposed and that, because the statute concerns
       good-time credit, “its application is not definite, immediate, or automatic.” Id. In essence, this
       court has found that section 3-6-3(a)(2)(iii) does not “expose the defendant to a greater
       punishment than that authorized by the jury’s guilty verdict.” Apprendi, 530 U.S. at 494.
       Robinson and other post-Apprendi cases of this court have distinguished between findings of
       fact that impact the actual jail time a defendant must serve and those that impact the sentence
       imposed. See, e.g., Robinson, 383 Ill. App. 3d at 1071; People v. Garry, 323 Ill. App. 3d 292,
       299 (2001) (“[T]he finding of great bodily harm simply had an impact upon the amount of time
       by which defendant—through his own ‘good conduct’—could decrease his sentence” and did
       not “trigger any penalty for [the] crimes.” (Emphases omitted.)). We find that the Supreme
       Court’s analysis in Alleyne does not change our analysis with regard to section 3-6-3(a)(2)(iii).
       Although the finding of great bodily harm by the court may change the actual amount of jail
       time defendant serves, it does not increase defendant’s mandatory minimum sentence and thus
       does not violate Alleyne. Accordingly, we find that section 3-6-3(a)(2)(iii) is not
       unconstitutional on its face.

¶ 85                                      1. Sixth Amendment
¶ 86       For the same reasons, we find that the trial court’s sentence did not violate defendant’s
       sixth amendment rights to due process or a trial by jury. The fourteenth amendment right to
       due process and the sixth amendment right to a trial by jury, “[t]aken together, ***
       indisputably entitle a criminal defendant to ‘a jury determination that he is guilty of every

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       element of the crime with which he is charged, beyond a reasonable doubt.’ ” Apprendi, 530
       U.S. at 476-77 (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)). Defendant
       contends that, although he failed to preserve this issue for review, we should review this issue
       under the plain error doctrine, or, in the alternative, because his counsel was ineffective for
       failing to preserve the issue for appeal. Defendant contends that he suffered prejudice where
       the cause and extent of Mallette’s injuries were contested at trial. We disagree.
¶ 87        As discussed, the court’s finding that defendant caused great bodily harm was not an
       element of the offense but rather was a sentencing element. We further recognize that the
       court’s finding was supported by the record, particularly Dr. Schupp’s testimony that Mallette
       had fractured ribs, fractures to his spine, a collapsed lung, fractured thyroid cartilage, and the
       imprint of the bottom of a shoe on his face. Dr. Schupp testified that Mallette’s version of the
       events was consistent with the injuries he exhibited, and Sergeant Klebba and Hansen both
       testified that Mallette was in obvious pain when they arrived at the scene of the incident.
       Defendant did not present any evidence to contest the extent of Mallette’s injuries but merely
       relies on the testimony of Hansen and Officer Stanley that defendant did not mention to them
       that he had been choked. This was insufficient to rebut the trial court’s finding that defendant
       caused great bodily harm to Mallette. Accordingly, we find no error warranting plain error
       review and honor defendant’s forfeiture of this issue. See Johnson, 238 Ill. 2d at 491. We
       likewise find defendant’s claim of ineffective assistance of counsel unavailing. “[I]f the
       ineffective-assistance claim can be disposed of on the ground that the defendant did not suffer
       prejudice, a court need not decide whether counsel’s performance was constitutionally
       deficient.” People v. Evans, 186 Ill. 2d 83, 94 (1999). Prejudice occurs where defendant
       demonstrates a reasonable probability that, but for counsel’s deficient performance, the
       outcome of the proceedings would have been different. People v. Richardson, 189 Ill. 2d 401,
       411 (2000). As discussed, we find that the trial court did not err in finding that defendant
       caused great bodily harm, and we therefore find no prejudice as a result of defense counsel’s
       alleged deficient performance.

¶ 88                                      D. Excessive Sentence
¶ 89       Lastly, defendant contends that his sentence is excessive in light of his young age, lack of
       criminal history, family background, and other factors that demonstrate his potential for
       rehabilitation. Defendant asserts that the court improperly focused on one “most significant”
       factor in aggravation and one in mitigation in determining his sentence, ignoring the remaining
       mitigating factors presented. Defendant maintains that, given these mitigating factors, the
       minimum term of imprisonment allowable by statute was appropriate in this case and the court
       erred by sentencing him to a term of 23 years’ imprisonment.

¶ 90                                         1. Standard of Review
¶ 91        A reviewing court will not alter a defendant’s sentence absent an abuse of discretion by the
       trial court. People v. Alexander, 239 Ill. 2d 205, 212 (2010). A trial court abuses its discretion
       in determining a sentence where the sentence is greatly at variance with the spirit and purpose
       of the law or if it is manifestly disproportionate to the nature of the offense. Id. The trial court is
       afforded such deference because it is in a better position than the reviewing court to weigh the
       relevant sentencing factors such as “ ‘defendant’s credibility, demeanor, general moral
       character, mentality, social environment, and age.’ ” People v. Stevens, 324 Ill. App. 3d 1084,

                                                     - 22 -
       1093-94 (2001) (quoting People v. Streit, 142 Ill. 2d 13, 19 (1991)). In the absence of evidence
       to the contrary, we presume that the sentencing court considered all mitigating evidence
       presented. People v. Gordon, 2016 IL App (1st) 134004, ¶ 51.

¶ 92                                      2. Defendant’s Sentence
¶ 93        Here, defendant was found guilty of robbery (720 ILCS 5/18-1(a) (West 2010)) and home
       invasion (720 5/12-11(a)(2) (West 2010) (renumbered as 720 ILCS 5/19-6(a)(2) by Pub. Act
       97-1108 (eff. Jan. 1, 2013))). Robbery is a Class 2 felony, which carries a sentencing range of
       three to seven years’ imprisonment (730 ILCS 5/5-4.5-35(a) (West 2010)). Defendant was
       eligible for Class X sentencing for his conviction for home invasion because he intentionally
       caused injury in the commission of the offense (720 5/12-11(a)(2), (c) (West 2010)
       (renumbered as 720 ILCS 5/19-6(a)(2), (c) by Pub. Act 97-1108 (eff. Jan. 1, 2013))), which
       carries a sentencing range of 6 to 30 years’ imprisonment (730 ILCS 5/5-4.5-25(a) (West
       2010)). The court sentenced defendant to consecutive terms of imprisonment of 5 years for
       robbery and 18 years for home invasion. Thus, the sentence imposed fell within the statutorily
       prescribed range.
¶ 94        Defendant contends, however, that the court abused its discretion in determining his
       sentence by considering only the “most significant” factors in mitigation and aggravation
       instead of considering all statutory factors. The record shows that in announcing defendant’s
       sentence, the court stated that “one of the most significant” factors in aggravation was the
       injuries to Mallette and that defendant’s lack of criminal background was “the significant
       factor” in mitigation. Defendant construes this explanation by the court to indicate the court
       considered only these factors in determining defendant’s sentence and ignored the other factors
       presented in mitigation and aggravation. The record shows, however, that the court also stated
       that it had “reviewed all the statutory factors in aggravation and mitigation.” (Emphasis
       added.).
¶ 95        The record shows that during the sentencing hearing, defense counsel identified the same
       mitigating factors defendant brings to our attention on appeal, including defendant’s youth,
       lack of criminal background, and rehabilitative potential. It is not our function to
       independently reweigh these factors and substitute our judgment for that of the trial court.
       Alexander, 239 Ill. 2d at 214-15. Although the trial court did not specifically identify which
       factors it considered in determining defendant’s sentence, we observe that a trial court is not
       required to specify on the record the reasons for the sentence imposed (People v. Acevedo, 275
       Ill. App. 3d 420, 426 (1995)) nor is it required to recite and assign value to each factor
       presented at the sentencing hearing (People v. Baker, 241 Ill. App. 3d 495, 499 (1993)).
       Rather, it is presumed that the trial court properly considered all mitigating factors and
       rehabilitative potential before it, and the burden is on defendant to affirmatively show the
       contrary. People v. Brazziel, 406 Ill. App. 3d 412, 434 (2010). Here, defendant has failed to do
       so. Although we are cognizant of Justice Hyman’s concurring opinion in People v. Bryant,
       2016 IL App (1st) 140421, ¶ 26 (Hyman, J., specially concurring), which is cited by defendant
       and calls into question the practice of trial courts not stating on the record the basis for their
       sentencing decision, it does not change our well-established precedent.
¶ 96        We further find defendant’s reliance on Miller v. Alabama, 567 U.S. 460 (2012), Graham
       v. Florida, 560 U.S. 48 (2010), and Roper v. Simmons, 543 U.S. 551 (2005), unpersuasive.
       This line of Supreme Court cases has recognized the special characteristics of juvenile

                                                   - 23 -
        offenders, including their lack of maturity, underdeveloped brains, and rehabilitative potential,
        and requires sentencing courts to consider these factors in sentencing. See Roper, 543 U.S. at
        569; Graham, 560 U.S. at 68; Miller, 567 U.S. at 471. Defendant contends that under this
        precedent, the trial court did not adequately consider defendant’s age, 19 years old at the time
        of the incident, in sentencing him to a term of imprisonment of 23 years.
¶ 97         Our supreme court has repeatedly held, however, that the rationale of Miller, Roper, and
        Graham applies “only in the context of the most severe of all criminal penalties,” namely
        capital punishment, natural life imprisonment, or de facto life imprisonment. People v.
        Patterson, 2014 IL 115102, ¶ 110; see also People v. Reyes, 2016 IL 119271, ¶ 9 (holding that
        under Miller, Roper, and Graham, a juvenile offender’s eighth amendment rights are violated
        where the juvenile is sentenced to a mandatory term of imprisonment that has the functional
        equivalent of life in prison without the possibility of parole). Here, defendant did not receive
        “the most severe of all criminal penalties.” His 23-year sentence does not amount to a de facto
        life sentence, and as such the rationale of Miller, Roper, and Graham does not apply to his
        sentence. Even if defendant’s sentence were considered a de facto life sentence, this court has
        declined to apply the rationale of Miller, Roper, and Graham, where, as here, defendant is an
        adult, i.e., over the age of 18. See People v. Thomas, 2017 IL App (1st) 142557, ¶¶ 26-28.
        Accordingly, we find no abuse of discretion where the sentence imposed was within the
        prescribed statutory range, does not greatly vary from the purpose of the law, and is not
        manifestly disproportionate to the nature of the offense. Brazziel, 406 Ill. App. 3d at 433-34
        (citing People v. Stacey, 193 Ill. 2d 203, 210 (2000)).

¶ 98                                       III. CONCLUSION
¶ 99       For the reasons stated, we affirm the judgment of the circuit court of Cook County.

¶ 100      Affirmed.




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