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                              Appellate Court                             Date: 2018.06.14
                                                                          11:33:25 -05'00'




                   People v. Lewis, 2018 IL App (4th) 150637



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           NOBLE LEWIS JR., Defendant-Appellant.



District & No.    Fourth District
                  Docket No. 4-15-0637



Filed             April 13, 2018



Decision Under    Appeal from the Circuit Court of Vermilion County, No. 14-CF-88;
Review            the Hon. Nancy S. Fahey, Judge, presiding.



Judgment          Affirmed in part and vacated in part.


Counsel on        Michael J. Pelletier, Jacqueline L. Bullard, and Sonthonax B.
Appeal            SaintGermain, of State Appellate Defender’s Office, of Springfield,
                  for appellant.

                  Jacqueline Lacy, State’s Attorney, of Danville (Patrick Delfino, David
                  J. Robinson, and Linda S. McClain, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.
       Panel                   JUSTICE STEIGMANN delivered the judgment of the court, with
                               opinion.
                               Presiding Justice Harris and Justice Holder White concurred in the
                               judgment and opinion.


                                                OPINION

¶1           In March 2015, the State charged defendant, Noble Lewis Jr., with home invasion (720
         ILCS 5/19-6 (West 2014)) and domestic battery (subsequent offense) (id. § 12-3.2(a)(2)). In
         April 2015, a jury found defendant guilty of domestic battery but not guilty of home
         invasion. The trial court later sentenced him to five years in prison.
¶2           Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a
         reasonable doubt, (2) the trial court erred because, when the deliberating jury requested to
         hear again the compact disc recording of the victim’s 911 call, the court had the jury brought
         into the courtroom where the compact disc was replayed in the presence of the court, both
         counsel, and the defendant, (3) his trial counsel rendered ineffective assistance of counsel,
         and (4) this court should vacate the purported fines imposed by the circuit clerk but not
         imposed by the judge.
¶3           We reject defendant’s first three arguments but agree with his fourth. Accordingly, we
         vacate the clerk-imposed fines, and we otherwise affirm the trial court’s judgment.

¶4                                           I. BACKGROUND
¶5           Defendant’s jury trial occurred in April 2015, and the following facts are undisputed.
¶6           From about 9:30 a.m. to 11 a.m. on February 28, 2014, defendant’s then-girlfriend, Kelly
         Glore, had coffee in Danville, Illinois, with a friend, Glen Fink. At the time, defendant, a
         mechanic by trade, was working on a car and drove it to AutoZone to buy some parts. While
         there, he received a telephone call from Glore, who wanted him to pick her and Fink up from
         Kmart because it was too cold for them to wait for the bus. Defendant did so, dropped Fink
         off at his destination, and dropped Glore at her apartment on Fairweight Avenue. Defendant
         then resumed work on the car.
¶7           At 4:30 p.m. or 5 p.m., he finished with the car and arrived at Glore’s apartment around
         5:30 p.m. He cooked supper, which he and Glore ate while drinking vodka. Around 7 p.m. or
         8 p.m., a man whom defendant knew, Michael Roberson, arrived at the apartment, and
         defendant introduced him to Glore.
¶8           At this point, the accounts from Glore and defendant as to what happened substantially
         differ.

¶9                                     A. The State’s Case-in-Chief
¶ 10                                  1. The Testimony of Kelly Glore
¶ 11         Glore testified that when Roberson came over, he and defendant smoked crack cocaine.
         As she was lying on a mattress in the living room, Roberson looked over at her and asked,
         “ ‘Ma’am, which room do I get?’ ” Thinking he was just talking nonsense because he was


                                                    -2-
       high, she at first ignored him. When he repeated the question, she responded, “ ‘What do you
       mean, which room do you get?’ ” He explained he had paid defendant $50 to live in her
       apartment.
¶ 12       Upon receiving this news, Glore asked defendant to come with her to the bedroom so she
       could talk with him. During their conversation in the bedroom, she told defendant “he needed
       to leave and sober up for a couple of hours.” The prosecutor asked her:
                   “Q. What happened?
                   A. At that point, I saw a look in his eyes, and I got scared and ran outside. I ran to
               the apartment steps, ran to the side of the apartment, and I called the police, and then I
               ran back up the steps and ran toward my apartment, and [defendant] was going to
               throw me over the balcony, so I braced myself between the balcony and the girl’s
               apartment door[,] and that’s when he was punching me in the head and face.”
¶ 13       After defendant “let [her] up,” she went back into her apartment. Both he and Roberson
       had “[taken] off.” Defendant “probably realized that [she had] called the cops.”
¶ 14       The police arrived at her apartment, and she told them what had happened. The police
       looked for defendant but could not find him. They told her to call them back if he returned.
¶ 15       About 2 a.m., defendant kicked in the door of her apartment. When he did so, she was
       lying on the mattress in her living room and had not left the apartment since the police had
       been there. She explained what happened next, as follows:
                   “At first, he came after me with a staple gun. Then he grabbed a kitchen chair and
               put a hole in the wall, broke the kitchen chair, and then he put a mask on his face, and
               I asked [him] why he was putting the mask on his face, and he said so that way when
               he kills me, we [sic] couldn’t identify him. Then he put some gloves on, and I asked
               him why he put the gloves on. He said because that way they won’t get any
               fingerprints from him. He had two knives in his hand[,] and he came to the mattress
               and jumped on top of me and told me he was going to kill me. First, he wanted to get
               the phone, but I had the phone stuffed under the mattress in my hand, and—when he
               had the knives to my neck, I told him—I took the [B]ible out to him, and then he got
               up, but it was God that called 911, because I couldn’t see what I was calling. And
               then the police came in.”
¶ 16       On cross-examination, Glore denied she smoked crack cocaine with Roberson when he
       came to her apartment with defendant, but she admitted smoking crack cocaine three months
       before the trial. She remembered going to the police station and giving a statement to a
       detective named Lewallen, but because “[it had] been a long time [ago],” she could not
       remember everything she had told him. She remembered telling him about the staple gun.
       However, she could not remember whether she told the detective that defendant had been
       living with her on Fairweight Avenue or that he had hit her eight times.
¶ 17       She agreed with defense counsel that this was “not the first time [she had] called the
       police on [defendant],” but she could not remember the date when she previously had done
       so. She and defendant had known each other for only a year prior to the trial. A previous
       battery occurred sometime when they lived together on East Main Street before she moved to
       Fairweight Avenue. She had defendant arrested for domestic battery on that previous
       occasion, and “[h]e spent some time in jail.” When he was released from jail, she allowed



                                                   -3-
       him to move back in with her on East Main Street because she loved him.

¶ 18                            2. The Recording of Glore’s First 911 Call
¶ 19       The first 911 call that Glore made in the early morning of March 1, 2014, lasted 5
       minutes and 20 seconds. The State played a compact disc, on which the call was recorded. In
       the 911 call, Glore, wailing and sobbing, identified her attacker as “Noble Lewis, Jr.” She
       stated that he had left after punching her, she currently was alone in the apartment, and this
       was not the first time he beat her up.

¶ 20                                  3. The Testimony of Kyle Harrold
¶ 21       Kyle Harrold testified he was a Danville police officer. On March 1, 2014, around
       midnight, he received a dispatch to Fairweight Avenue regarding a domestic battery call.
       When he arrived at the apartment, the door frame was intact, and there were no obvious
       marks on the door. Inside, it was a “pretty standard apartment,” with “nothing really out of
       place.”
¶ 22       The prosecutor asked Harrold:
                    “Q. Could you please describe your own personal [observations] of what Kelly
                Gore looked like at that time?
                    A. At that time, she had swelling, some bruising and redness in the right corner of
                her right eye. She also had redness in her left ear.”
¶ 23       After talking with Glore, Harrold attempted to locate the suspect but was unsuccessful.
       He told Glore to call back if the suspect returned to the apartment and the police would come
       as fast as they could.
¶ 24       At about 2:15 a.m. on March 1, 2014, the dispatchers received a hang-up 911 call. They
       looked up the telephone number and discovered it was Glore’s.
¶ 25       In response to the hang-up 911 call, Harrold returned to apartment No. 6 on Fairweight
       Avenue. As Harrold got out of his squad car, “a male black who was later identified as
       [defendant]” was on a porch. (In the courtroom, Harrold identified defendant as the man.)
       Upon seeing Harrold, defendant “ran back into the apartment.” Harrold ran after him and up
       some stairs. When Harrold reached Glore’s apartment, he found (1) the door of the apartment
       partly ajar, (2) a large mark, seemingly a shoe print, on the center left of the door, by the door
       handle, and (3) the door frame broken, with splinters of wood on the floor. Glore yelled,
       “ [‘C]ome in and get him[!’] ” On Harrold’s instructions, she ran out of the apartment, and
       defendant came into the living room. Harrold then arrested him.

¶ 26                             4. The Testimony of Danielle Lewallen
¶ 27       Danielle Lewallen testified she was a Danville police officer currently assigned to the
       second-shift patrol, but in March 2014 she was assigned to the detective division. (She
       explained that patrol officers in the Danville Police Department normally were rotated into
       the detective division, where they remained for a year, and then were rotated out again.)
¶ 28       On March 1, 2014, at about 2 a.m., the dispatcher notified her of a hang-up 911 call. The
       911 call history indicated an address on East Main Street, and at first Lewallen went to that
       address, but nothing appeared to have happened there. Harrold then informed Lewallen that


                                                   -4-
       only a few hours earlier he handled a domestic call on Fairweight Avenue, at apartment No.
       6, Glore’s apartment. So, Lewallen and Harrold went to that address.
¶ 29       Upon arriving, they found the door of the apartment busted in and a shoe print on the
       door. Two people were in the apartment, defendant and Glore. The interior of the apartment
       was in disarray, things were strewn around, and a chair and a lamp were broken. Lewallen
       photographed a kitchen knife that Harrold told her allegedly had been used against Glore.
       Lewallen did not recall seeing a staple gun.
¶ 30       She photographed injuries to Glore’s face, neck, and left ear. Glore was upset. She said it
       was her apartment and that defendant stayed there every night.
¶ 31       The prosecutor asked Lewallen:
                   “Q. *** Defense counsel asked you about Ms. Glore making comments that she
               had smoked crack that—on—about the time this happened. Did she indicate to you
               what time of day that she had smoked crack?
                                                      ***
                   A. She advised she went for coffee that morning, and after she went for coffee,
               she had smoked some crack, and that [defendant] had smoked crack with her, and he
               had continued to smoke crack throughout the day.
                   Q. Did she indicate if she stopped smoking crack at any point during that day?
                   A. She didn’t advise that she had smoked any crack after the initial time she
               advised. I do not recall the initial time.”

¶ 32                                       B. Defendant’s Case
¶ 33                                  1. The Testimony of Defendant
¶ 34       Defendant took the stand in his own behalf. He testified that he and Glore began dating
       one another in February 2013 and that, at some point, he moved in with her on East Main
       Street. Her electricity and water had been turned off for nonpayment, and he assisted her
       financially by putting the utilities in his own name. He “help[ed] her *** get her life
       together,” and according to him, “[s]he liked that in [him].”
¶ 35       On August 30, 2013, while they were living together on East Main Street, Glore asked
       defendant to give her some money, and he refused. In retaliation, she accused him of
       battering her, even though he “never put a hand on her.” He returned to the house in the
       evening after working on a car, and he tried to get in the back door, but she had blocked it
       with a refrigerator, and she ran out the front door.
¶ 36       The police arrested him and took him to jail, where he remained until October 8, 2013.
       On that date—even though he was innocent—he pleaded guilty to simple battery so he could
       get out of jail in time for Thanksgiving and Christmas. (Later, on cross-examination, he
       admitted he was convicted in 2013 of domestic battery.) He had children, and it was
       important to him to be with them during the holidays.
¶ 37       In 2013, while defendant was in jail, Glore visited him and promised “she would try to do
       better.” He was “kind-hearted,” and he “cared for her” and did not want to see her homeless.
       So, when he was released from jail, he reestablished his relationship with her and helped her
       move from the East Main Street residence, from which she was being evicted, to the
       apartment on Fairweight Avenue. He moved in with her again.


                                                  -5-
¶ 38        Defendant testified that on February 28, 2014, when defendant went to AutoZone to buy
       parts, Glore telephoned him and asked him to come to Kmart to give her and Fink a ride.
       Defendant then picked them up in the car he was working on. He dropped Fink “off at
       Valleyview” and Glore at the apartment on Fairweight Avenue, and he resumed work on the
       car.
¶ 39        Defense counsel asked defendant:
                   “Q. I’m going to back you up a little bit. You picked them up. Where did you pick
               them up?
                   A. By K-Mart.
                   Q. Did something happen while Ms. Glore was getting in the car?
                   A. Yeah. She was in such a hurry to get in the car when the door opened, she got
               in, but she bumped her head both times getting in. It was a small car. Trying to get in
               as fast as she was getting in, she didn’t get in all the way. She crashed with the door. I
               didn’t see if she was okay. She got in, [‘]I’m okay. I’m okay.[’]
                   Q. Is that your understanding that’s how she has the bump on the side of her
               head?
                   A. Yes.”
¶ 40        Around 4:30 p.m. or 5 p.m. on February 28, 2014, defendant finished working on the car,
       and its owner dropped him off at the apartment on Fairweight Avenue. Only Glore was there.
       He cooked dinner for the two of them. Defense counsel asked him:
                   “Q. Did [Glore] eat dinner that night?
                   A. She nitpicked at it, but I kind of knew why she nitpicked.
                   Q. Why is that?
                   A. She’s been getting high.
                   Q. Is that normal for her to do?
                   A. She does it every day. But like I said, it’s just every day.
                   Q. When she’s high, she doesn’t eat much?
                   A. No.”
¶ 41        Around 7 p.m. or 8 p.m., Roberson came to the apartment. Defendant introduced him to
       Glore and had a drink with him, and Roberson and Glore talked. “Next thing you know, they
       found out that they do the same thing,” that is, “[t]hey party alike.” Roberson bought $20 of
       crack cocaine (from whom is unspecified), and he and Glore shared it while defendant
       washed dishes. Then they all “sat and talked and talked, kicking it, you know.” Then
       Roberson bought another $20 of crack cocaine, and “they got that.” By 12:30 or 1 a.m. on
       March 1, 2014, “[Glore] wanted some more, and [Roberson] wanted some more, but all
       [Roberson] had was $10,” and no dealer would take the risk of bringing a mere “$10 worth of
       stuff.” Defendant continued:
               “Me and [Roberson] left together, because the party was over with. They couldn’t get
               no more stuff. So, okay. I said well—then she had a thing about I’m always doing
               that. That’s when I told her, ‘You supposed to be trying to quit this stuff. I’m doing
               what I’m trying to do, but you getting mad because he only got $10 left.’ So, I don’t
               understand. But anyway, I’m going to get some tobacco before the store closes.”


                                                   -6-
¶ 42       So, around 1 a.m. or 1:15 a.m., defendant left the apartment with Roberson and set out on
       foot for Main Package on East Main Street to buy tobacco. The store’s closing time was 2
       a.m. or 2:30 a.m., and “[o]n a good day,” it was a 25-minute walk to the store, one way. It
       was cold and slippery out. Defense counsel asked defendant:
                   “Q. Okay. Did you take your billfold with you?
                   A. No. I left my billfold, my cell phone[,] and the house key in the dresser,
               because I was just running down the street. Ain’t thinking about—I had the money in
               my pocket. I didn’t have to grab none of that stuff. I never thought, you know, I
               would have no trouble getting in. I never had trouble getting in before, unless she lost
               her key. Well, she did lose her key.”
¶ 43       After buying a bag of tobacco at Main Package, defendant walked back to the apartment
       on Fairweight Avenue. He estimated it was “probably about an hour, roundtrip,” and he
       arrived back at the apartment “around probably 2:15 [a.m.], maybe.” He knocked on the door
       of the apartment and yelled at Glore to unlock the door, but there was no response.
       “[K]nowing that when she’s been on a binge like that, she can go to sleep and can’t wake
       up,” he “just had to push the door open.” The door had “been jimmied before, so it wasn’t
       hard to do.” He found Glore lying on the mattress in the living room. She appeared to have
       just awakened, and she looked stunned and baffled, as if she did not know what he was
       doing.
¶ 44       Defense counsel asked defendant:
                   “Q. Where did you go next?
                   A. I went to the kitchen to hang my coat up and took off everything. I was telling
               her, I said the door was locked. I had to jimmy it. So, you know, I get ready to start
               picking up the pieces. That’s when I looked out the door and seen the police was
               coming up. I looked out the door and asked her why she called the police. She never
               said nothing. All I know then, they was just wanting to get me down. I told them I
               couldn’t get down. I was trying to explain to them, I got 13 pins and stuff in my leg,
               so I can’t get down.”
¶ 45       Defendant denied ever hitting Glore or holding a knife or staple gun to her throat. He also
       denied kicking the door of her apartment. He insisted he was incapable of kicking and that,
       instead, he merely pushed the door open with his shoulder.

¶ 46                               2. The Testimony of Norman Lewis
¶ 47       Norman Lewis testified he was defendant’s brother and that defendant and Glore had
       been in a dating relationship for “[r]oughly two years.” He helped them move appliances to
       the house on East Main Street and, later, to the apartment on Fairweight Avenue. He had
       been to the apartment on Fairweight Avenue once or twice to pick them up and give them a
       ride. It was his understanding that defendant lived in the apartment with Glore, just as he had
       lived with her on East Main Street. He opined that the exterior of the apartment needed
       repairs, particularly the door. He testified: “The door, the steps all the way up to the
       apartment, was kind of rugged. The door, you had to twist the knob, pick it up, try to bump it
       open, and you have to do the same thing when you shut it.” The door “wasn’t that secure.”




                                                  -7-
¶ 48                             3. The Testimony of Kyle Harrold
¶ 49      Defense counsel asked Harrold:
                “Q. [On March 1, 2014, at the Fairweight Avenue apartment, w]hen you spoke
             with Kelly Glore, did she tell you that there was a staple gun that was used?
                A. No, she did not.
                Q. Did she tell you that there was one knife or two knives?
                A. One knife.”


¶ 50                                  C. The State’s Case in Rebuttal
¶ 51                              1. The Testimony of Danielle Lewallen
¶ 52       The prosecutor asked Lewallen about her interview of defendant on March 3, 2014, at the
       county jail. Specifically, the prosecutor asked her what he said “in regards to how he got
       inside of the apartment at Fairweight [Avenue] on the night that he was arrested.” Lewallen
       answered: “He stated to me in the statement that Ms. Gore would not let him back into the
       residence, so he kicked the door in.”

¶ 53                          D. Notes From the Jury During Deliberations
¶ 54                       1. The Note Asking What Is a “Place of Residence”
¶ 55       At 10:07 a.m. on April 22, 2015, the jury began its deliberations.
¶ 56       At 11:01 a.m., the jury sent out a note asking, “What constitutes your place of
       residence?” The trial court wrote in response: “You have the jury instructions.” (The court
       had instructed the jury that knowingly and without authority entering the dwelling place of
       another was an element of home invasion and that a “dwelling place” was “a building or
       portion of a building which [was] used or intended for the use as a human habitation, home,
       or residence.”)

¶ 57                   2. The Note Requesting to Listen to the 911 Recording Again
¶ 58        At 11:34 a.m., the jury sent out a note asking, “Can we have the 911 CD for us to listen
       to, tape player as well?”
¶ 59        Defense counsel asked the prosecutor if not only the first 911 call but also the second one
       was on the compact disc (People’s exhibit No. 2). The prosecutor believed it was. The trial
       court asked: “What was the second one? Just a hang-up?” Defense counsel answered, “It’s,
       like, a minute of background stuff.”
¶ 60        The prosecutor was of the view that because he had not played the second (hang-up) 911
       call to the jury, “it would be inappropriate for them to hear that” now. He argued, therefore,
       that if the court, in its discretion, allowed the jury to hear the first 911 call again, the jury
       should do so in the courtroom “so we can control them not hearing the second call.” The
       court asked: “So, you want to bring them out here so they can hear it?” Defense counsel
       responded: “I think that’s probably safest.” Defense counsel then asked the prosecutor if
       possibly someone in his office “could just burn the first call.” The prosecutor responded: “I’d
       rather not tamper with evidence.” The following discussion occurred:



                                                   -8-
                    “THE COURT: We’re not going to do that. We’re back on the record. Do you
               want me to go back and tell them that we’re bringing them into the courtroom to
               listen to it, or do you want to just bring them in, or—
                    MS. PERRY [(PROSECUTOR)]: Whatever the [c]ourt—
                    MS. BEZNER [(DEFENSE COUNSEL)]: I would say to just bring them in.
                    MS. PERRY: I would say bring them in, Judge, and maybe admonish them out
               here that for legal reasons, we can’t allow you to take it back into the jury room, but
               you can listen to it out here.”
¶ 61       At 11:40 a.m., the jury was brought back into the courtroom. The trial court told the jury
       the following:
                    “THE COURT: For legal reasons, I can’t send the tape player and the disc back to
               you in the jury room, but we’re going to let you listen to it again out here. Okay.
                    MS. PERRY: For the record, I’m playing the disc.
                                 (Peoples exhibit [No.] 2 played for the jury)
                    THE COURT: Okay. You can take them back in the jury room.
                     (Jury released back to the jury room to deliberate at 11:46 a.m.)”
¶ 62       Thereafter, the jury found defendant guilty of domestic battery but not guilty of home
       invasion.

¶ 63                                         II. ANALYSIS
¶ 64       Defendant appeals, arguing that (1) the State failed to prove him guilty beyond a
       reasonable doubt, (2) the trial court erred because, when the deliberating jury requested to
       hear again the compact disc recording of the victim’s 911 call, the court had the jury brought
       into the courtroom where the compact disc was replayed in the presence of the court, both
       counsel, and the defendant, (3) his trial counsel rendered ineffective assistance of counsel,
       and (4) this court should vacate the purported fines imposed by the circuit clerk but not
       imposed by the judge. We will address these contentions in turn.

¶ 65                                A. The Sufficiency of the Evidence
¶ 66       In the domestic battery count (720 ILCS 5/12-3.2(a)(2) (West 2014)), the State charged
       that on or about March 1, 2014, defendant knowingly and without legal justification made
       physical contact of an insulting or provoking nature with Glore, a household or family
       member, and that he committed this domestic battery after having previously been convicted
       of domestic battery. Defendant argues that the State failed to prove him guilty beyond a
       reasonable doubt because (1) Glore was impeached by inconsistencies between her 911 call
       and her trial testimony and (2) Glore’s testimony had no support in the physical evidence.
       We will first address the alleged inconsistencies.

¶ 67                         1. Inconsistencies Between Glore’s 911 Call
                                        and Her Trial Testimony
¶ 68       Defendant argues that in her 911 call, Glore “clearly stated that she was currently alone in
       the apartment,” whereas she testified at trial that she made the 911 call while defendant and
       Roberson were still in the apartment. (According to her testimony, defendant and Roberson

                                                  -9-
       had “[taken] off” because defendant “probably realized that [she had] called the cops.”)
       However, this supposed inconsistency is explainable because Glore might have dialed 911
       while defendant and Roberson were still in the apartment, and they might have left as she
       was making the call, thus leading her to tell the 911 operator she now was alone in the
       apartment. We note that the 911 call literally begins with Glore’s yelling, “Fuck you!”—as if
       at defendant’s departing back—and when the 911 operator first asks Glore where defendant
       is, she seems to answer, “At the door.” (Glore is sobbing and wailing and breathing heavily
       throughout the recording, and understanding her is at times difficult.)
¶ 69        Later in the call, Glore seems ambivalent as to where defendant is. For instance, she says
       she has not opened the door (presumably, the door to the apartment) and thus she does not
       know if he is still there. Only later in the call can she confidently answer that she is alone in
       the apartment, and she suggests that defendant probably is running down an alley. Therefore,
       when we look at the evidence in the light most favorable to the prosecution, as we are
       required (see People v. Hall, 194 Ill. 2d 305, 330 (2000)), the supposed inconsistency does
       not necessarily exist.
¶ 70        Defendant contends a further inconsistency exists in that, in the 911 call, Glore reported
       that defendant already had punched her. However, in her trial testimony, she stated she made
       the 911 call out of fear that he would punch her and that he punched her after she made the
       911 call.
¶ 71        Despite this inconsistency, when looking at all the evidence in the light most favorable to
       the prosecution, we are not convinced that all reasonable triers of fact consequently would
       find Glore to be unbelievable as a result. We acknowledge, of course, that testimony can be
       so pervasively inconsistent and so wildly implausible that no sensible trier of fact could
       possibly believe it. People v. Smith, 185 Ill. 2d 532, 541-45 (1999); People v. Williams, 65 Ill.
       2d 258, 266 (1976); People v. Williams, 383 Ill. App. 3d 596, 643 (2008). However, putting
       Glore’s testimony in that category would be a gross exaggeration. A witness need not be
       ideal to be believed. “Inconsistencies in and contradictions of testimony do not destroy
       credibility as a matter of law. [Citation.] Rather, the credibility of witnesses and the weight to
       be given their testimony are for the jury to decide.” People v. Vazquez, 194 Ill. App. 3d 516,
       518 (1990).

¶ 72                        2. The Lack of Physical Evidence to Substantiate
                                   Certain Parts of Glore’s Testimony
¶ 73       Defendant points out that although Glore testified he “came after [her] with a staple gun,”
       the police found no staple gun on the scene. Defendant also argues that although Glore
       testified he held two knives to her neck and although a kitchen knife was located in the
       apartment, no evidence was offered, beyond her testimony, that he really attacked her with a
       knife. The photographs showed no knife injury to her neck.
¶ 74       Again, these apparent discrepancies in the evidence are not, as a matter of law,
       dispositive. See People v. Bowen, 289 Ill. App. 3d 378, 384 (1997). Defendant might have
       put away the staple gun when he realized the police were on the way, and he could have held
       a knife to Glore’s neck without cutting her with it.
¶ 75       Alternatively, the jury might have regarded these discrepancies as genuine but
       insufficient to make Glore unbelievable when it came to the beating she said she received


                                                   - 10 -
       from defendant. After all, she sounds quite hysterical and distraught in the 911 call, and the
       State presented photographs of her battered face.
¶ 76       Further, defendant’s explanation for how she received the facial injuries, i.e., accidentally
       running headlong into the door frame of the car—twice, no less—when he picked her up at
       Kmart, is arguably so implausible as to lead to the inferences that (1) defendant deliberately
       lied in this respect and (2) his reason for lying was that he was in fact the one who inflicted
       the facial injuries on Glore. The jury might also have found defendant’s story implausible
       when he claimed he walked an hour on a cold, icy night at 1 a.m. to buy tobacco or that he
       nonaggressively pushed the door of Glore’s apartment open with his shoulder instead of
       kicking it in, as he originally told the police at the county jail. The jury may well—and
       justifiably—have regarded his implausible stories as circumstantial evidence of guilt. See
       People v. Mister, 2016 IL App (4th) 130180-B, ¶ 113 (“Moreover, defendant’s lies are
       evidence of his consciousness of guilt.”).
¶ 77       In sum, when we look at all the evidence in the light most favorable to the prosecution,
       we conclude a rational trier of fact could find defendant guilty beyond a reasonable doubt.
       Hall, 194 Ill. 2d at 330. In so concluding, we note that a reviewing court generally will not
       substitute its judgment for that of the trier of fact when the trier of fact determines the
       credibility of the witnesses, the weight to be given to their testimony, and the inferences
       drawn from the evidence. People v. Bradford, 2016 IL 118674, ¶ 12. A reviewing court will
       reverse a conviction only where the evidence is so improbable and unsatisfactory it creates a
       reasonable doubt as to defendant’s guilt. Id.

¶ 78                            B. Replaying the 911 Recording to the Jury
                                  in the Courtroom During Deliberations
¶ 79                                          1. Invited Error
¶ 80        Next, defendant argues that the trial court committed reversible error by replaying the
       911 recording (People’s exhibit No. 2) to the jury in the courtroom in the presence of the
       parties during deliberations. Assuming, for the sake of argument, that this was indeed an
       error (an assumption with which we disagree, as we soon will explain), defendant, through
       his defense counsel, invited the supposed error by affirmatively agreeing with the
       prosecutor’s suggestion that the jury be brought back into the courtroom to hear the replaying
       of the 911 recording. See People v. Spencer, 2014 IL App (1st) 130020, ¶ 26 (“For the
       doctrine [of invited error] to apply, the defendant must affirmatively request or agree to
       proceed in a certain way.”). Defendant “invited or agreed to the procedure and is
       now estopped from asserting it as error.” People v. Bowman, 221 Ill. App. 3d 663, 666
       (1991).
¶ 81        Defendant disputes the fairness of the invited-error doctrine in this situation because the
       prosecutor and the trial court declined defense counsel’s suggestion of recording the 911 call
       on another compact disc from which the second (unadmitted) 911 call would be excluded.
       Even so, however, defense counsel did not need to agree to a replay of the 911 recording
       (People’s exhibit No. 2) in the courtroom. Alternatively, defense counsel could have argued
       for sending the exhibit and a CD player to the jury room with instructions to listen to only the
       first 911 call. A jury is presumed to follow instructions. People v. Pulliam, 206 Ill. 2d 218,
       256 (2002). Or defense counsel could have argued against allowing the jury to hear the 911
       recording again, either in the jury room or the courtroom. See People v. McDonald, 329 Ill.

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       App. 3d 938, 947 (2002) (“The decision whether to allow jurors to take exhibits into the jury
       room is left to the sound discretion of the trial court.”); People v. Panzer, 73 Ill. App. 3d 1,
       8-9 (1979) (to avoid undue emphasis on a single item of evidence, the trial court was justified
       in refusing to allow the defendant’s written statement to go to the jury room). In other words,
       by rejecting, as impractical or too risky, defense counsel’s suggestion of copying the first 911
       recording onto another CD while somehow avoiding copying the second 911 recording, the
       prosecutor and the court did not really reduce defense counsel to only one potential position.
¶ 82       We point out that defendant’s posttrial motion did not raise the alleged error of replaying
       the 911 recording to the jury in the courtroom during its deliberations. A defendant must both
       (1) object at trial to an alleged error and (2) raise the alleged error in his posttrial motion. A
       defendant’s failure to do either means that the alleged error is forfeited for purposes of an
       appeal. See People v. Reese, 2017 IL 120011, ¶ 60; People v. Williams, 2017 IL App (1st)
       142733, ¶ 46. An exception to this rule applies if a defendant asserts that the error involved is
       so egregious that plain-error analysis should apply, thereby overcoming the defendant’s
       forfeiture. However, under the circumstances of this case—specifically, defense counsel’s
       acquiescence in the very trial court ruling he now wishes to challenge—defendant is barred
       from asserting that the plain-error doctrine applies. We reiterate what this court wrote in
       People v. Dunlap, 2013 IL App (4th) 110892, ¶ 12, as follows:
                    “We also note that plain-error analysis does not apply to this case. Plain-error
                analysis, of course, ‘applies to cases involving procedural default ***, not affirmative
                acquiescence.’ [People v. Bowens, 407 Ill. App. 3d 1094, 1101 (2011)]. When, as
                here, defense counsel affirmatively acquiesces to actions taken by the trial court, a
                defendant’s only challenge may be presented as a claim for ineffective assistance of
                counsel on collateral attack.”
       In fact, defendant does allege that his trial counsel was ineffective regarding the replaying of
       the 911 recording, an allegation we address later in this opinion.

¶ 83                             2. Defendant’s Claim of Structural Error
¶ 84       Defendant argues it was a structural error to influence the jury’s deliberations by bringing
       the jury back into the courtroom for the replaying of the 911 recording. Because structural
       errors require “automatic reversal,” whether a structural error was invited is irrelevant
       because reversal nevertheless would be “automatic” in order to preserve the integrity of the
       judicial process. People v. Belknap, 2014 IL 117094, ¶ 85. In support of this contention,
       defendant cites Justice Holdridge’s dissent in People v. McKinley, 2017 IL App (3d) 140752,
       ¶ 44 (Holdridge, P.J., dissenting).
¶ 85       For reasons we will explain, we conclude the trial court committed no error by replaying
       the 911 recording in the courtroom. In the absence of any error, no claim of structural error
       could be justified. (Even though we conclude that structural error is not present in this case,
       we note that the United States Supreme Court recently explained the “concept of structural
       error” in Weaver v. Massachusetts, 582 U.S. ___, ___, 137 S. Ct. 1899, 1907-08 (2017), and
       we have doubts whether defendant’s structural error claims could ever meet the standards the
       Court explained in its discussion of structural error.)
¶ 86       To put Justice Holdridge’s dissent in context, we will discuss the facts in McKinley. The
       defendant in that case was charged with aggravated driving under the influence (aggravated
       DUI) (McKinley, 2017 IL App (3d) 140752, ¶ 3 (majority opinion)), and in its case-in-chief,

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       the State played for the jury a video of the traffic stop (id. ¶¶ 8-9). During its deliberations,
       the jury sent out a request to watch the video again. Id. ¶ 11. The judge had the bailiff bring
       the jury back into the courtroom, and the judge told the jury that because “ ‘two court calls
       [were] in process,’ ” a substitute judge would be present in the courtroom while the video
       was being replayed. Id. Before the video was replayed, the judge instructed the jury: “ ‘No
       one will make any additional comments about the video, and there won’t be any questioning
       of any of the attorneys or anything along those lines.’ ” Id. Defense counsel made no
       objection to these remarks. Id. The jury then watched the video in the presence of the
       substitute judge, the prosecutor, defense counsel, the defendant, and the bailiff. Id.
       Afterward, the jury found the defendant to be guilty of aggravated DUI. Id. ¶ 12.
¶ 87       On direct appeal, the defendant in McKinley argued the trial court had erred by allowing
       the jury, during its deliberations, to view the video in the courtroom instead of in the jury
       room. Id. ¶ 1. Justice Carter was the lead author in McKinley, and he along with Justice
       O’Brien concluded that no reversible error occurred. In reliance on United States v. Olano,
       507 U.S. 725, 737-38 (1993), People v. Johnson, 2015 IL App (3d) 130610, and People v.
       Rouse, 2014 IL App (1st) 121462, Justice Carter found neither of the alternative elements of
       plain error to have been met. McKinley, 2017 IL App (3d) 140752, ¶¶ 16, 25-27. One of the
       alternative elements was that “a clear or obvious error [had] occurred and the evidence [was]
       so closely balanced that the error alone threatened to tip the scales of justice against the
       defendant, regardless of the seriousness of the error.” (Internal quotation marks omitted.) Id.
       ¶ 25.
¶ 88       Justice Carter saw no abuse of discretion and, hence, no error (let alone plain error) in
       allowing the jury, during its deliberations, to view the video in the courtroom. Id. ¶ 23. No
       one spoke to the jury while the video was being replayed, and the record showed no
       prejudice to the defendant. Id. Justice Carter was unconvinced that the mere presence of the
       substitute judge, the prosecutor, defense counsel, the defendant, and the bailiff “affected the
       jury’s ability to analyze the video.” Id. Although he found that no prejudice and, thus, no
       error had been shown, Justice Carter cautioned “that the procedure utilized by the court in the
       instant case could have the potential of becoming problematic and possibly lead to
       prejudicial error in some cases.” Id. However, in Justice Carter’s view, even if this procedure
       was erroneous, the evidence was not closely balanced, and therefore, the error would be
       harmless. Id. ¶ 26.
¶ 89       The second alternative element of plain error (sometimes referred to as structural error) is
       that “a clear or obvious error occurred and that error [was] so serious that it affected the
       fairness of the defendant’s trial and challenged the integrity of the judicial process, regardless
       of the closeness of the evidence.” (Internal quotation marks omitted.) Id. ¶ 25. Justice Carter
       was unconvinced that “the circuit court’s decision with regard to the video” was a “structural
       error” in that sense. Id. ¶ 27.
¶ 90       Justice O’Brien disagreed with Justice Carter about the absence of error (id. ¶ 32
       (O’Brien, J., specially concurring)), although she ultimately specially concurred because she
       concluded that the evidence was not closely balanced; accordingly, plain error did not apply
       (id. ¶ 36). She believed “it was error to allow anyone to be present with the jury when [it]
       viewed the video during [its] deliberations,” even if the jurors said nothing to one another
       while viewing the video and even if no one said anything to the jurors. Id. ¶ 32. Silent
       deliberation, she reasoned, was nonetheless deliberation. She explained further, as follows:

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                   “While some may argue that jury deliberations constitute only the actual
               discussion of evidence and not its mere viewing, I believe this distinction is one
               without significance. The discussion of evidence is no different than the viewing of
               evidence, as both occur after the jury is ordered to deliberate, i.e., jury deliberations.
               Thus, upon a jury being ordered to deliberate, the circuit court must ensure that said
               deliberations are entirely private. Requiring the jury, in the instant case, to view the
               video in the courtroom and in the presence of the parties was improper.” Id. ¶ 35.
¶ 91       Justice Holdridge, in his dissent, disagreed with Justice O’Brien that allowing a
       deliberating jury to see a video again in the courtroom was erroneous per se. Id. ¶ 39
       (Holdridge, P.J., dissenting). He believed it was a structural error, however, to have the
       deliberating jury view the video in the courtroom in conjunction with the instruction the trial
       court gave, that “ ‘[n]o one [was to] make any additional comments about the video.’ ” Id.
       ¶¶ 43-44. Justice Holdridge wrote the following:
               “After hearing the instruction, it is reasonable to assume that the jurors would not
               have known if they were allowed to discuss the video among themselves once they
               returned to the jury room. I believe this fact, when viewed in conjunction with the
               fact that the jury was removed from the deliberation room and required to view the
               videotape in the courtroom and in the presence of the judge, parties, and bailiff,
               supports the conclusion that the circuit court abused its discretion in the manner in
               which it allowed the jury to review the videotape. Stated another way, while a circuit
               court has the inherent authority to control its courtroom, such authority does not
               excuse conduct that results in the chilling of jury deliberations.” Id. ¶ 41.
¶ 92       Thus, although Justice Holdridge agreed with Justices Carter and O’Brien that the
       evidence was not closely balanced, he argued that prejudice should be presumed from the
       conjunction of what he viewed as the erroneous instruction and the presence of the outsiders
       in the courtroom. He wrote that “[t]hough we cannot be certain that [the instruction]
       prevented the jury from discussing the video once [the jury] returned to the jury room, we
       can presume *** that the instruction inhibited the jury’s ability to deliberate.” Id. ¶ 43.
¶ 93       With all due respect to our distinguished Third District colleagues, we disagree with all
       of the views they expressed in McKinley. We recently rejected the argument that allowing a
       jury to view a video in the courtroom during deliberations amounted to a structural error, and
       we adhere to that view. People v. Matthews, 2017 IL App (4th) 150911, ¶ 43. We wrote that
       “even if we agreed with [the] defendant that the trial court erred in allowing the jury to view
       the video in the courtroom during deliberations, we find the alleged error does not rise to the
       level of structural error under the plain-error doctrine.” Id.

¶ 94                           3. Suggested Procedures When Replaying a
                                    Recording to a Deliberating Jury
¶ 95       To be clear, we now reject outright the argument that this procedure is even erroneous, let
       alone structurally erroneous. If a deliberating jury requests to hear an audio recording or to
       see a video recording again, the trial court does not have to send the recording and equipment
       to the jury room but may instead exercise its discretion to bring the jury into the courtroom
       for a replaying of the recording. See State v. Davidson, 509 S.W.3d 156, 203 (Tenn. 2016)
       (surveying numerous cases from other jurisdictions, all of which “found no abuse of
       discretion by the trial court in allowing the jury to review or rehear recorded evidence in

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        open court”); State v. Hughes, 691 S.E.2d 813, 826-27 (W. Va. 2010) (it is “universally
        accepted” that a trial court may allow the jury, during deliberations, to return to open court to
        review a tape recording admitted in evidence). Allowing a deliberating jury to listen to a
        recording again in the courtroom instead of in the jury room avoids problems with equipment
        and the skills necessary to operate the equipment (State v. Jones, 102 A.3d 694, 702 (Conn.
        2014)) and also “minimizes the risk of breakage or erasure of the recording” (State v.
        Anderson, 2006 WI 77, ¶ 30, 291 Wis. 2d 673, 717 N.W.2d 74).
¶ 96        When a deliberating jury returns to the courtroom and, in the presence of the judge, the
        parties, the lawyers, and court personnel listens again, in silence, to an audio recording, the
        jury does nothing different from what it did before, when the recording originally was
        played. Assuming the trial court has properly instructed the jury regarding this procedure, we
        adhere to the majority view and reject the notion that replaying an audio or visual recording
        is improper.
¶ 97        Accordingly, we conclude that if a jury, during its deliberations, requests to see or hear a
        recording again, the trial court need not send the recording and equipment into the jury room
        but instead may, in its discretion, have the jury brought back into the courtroom for a
        replaying of the recording. Justice Carter is correct that “the mode and manner in which a
        circuit court allows a jury to review a piece of evidence” (in this case, the 911 recording)
        “falls directly within the scope of the court’s inherent authority to manage its courtroom.”
        McKinley, 2017 IL App (3d) 140752, ¶ 22 (majority opinion). Thus, if the court chooses to
        have the recording replayed in the courtroom, the court, parties, and counsel must be present
        to view or hear the evidence, and the court should instruct the jury not to discuss the evidence
        while in the courtroom. The court should also in the jury’s presence admonish everyone else
        in the courtroom not to comment on the evidence, communicate with the jury, or try in any
        manner to influence the jury. See Davidson, 509 S.W.3d at 204. Further, to avoid the
        concerns expressed by Justice Holdridge in his dissent, the court should instruct the jury that
        after the replay, the jury will return to the jury room and should then continue its
        deliberations, which may include, if it wishes, the replay.
¶ 98        In the present case, the trial court did not give these instructions and admonitions, but
        “[in] the record before us, we find no indicia of prejudice or anything improper having
        occurred during the replay of the [recording].” Rouse, 2014 IL App (1st) 121462, ¶ 79.

¶ 99                    C. Defendant’s Claim of Ineffective Assistance of Counsel
¶ 100       Last, defendant argues his trial counsel rendered ineffective assistance by “not supporting
        her suggestion to burn the 911 call on another CD with constitutional and statutory law.”
¶ 101       A claim of ineffective assistance has two elements: (1) counsel’s performance fell below
        an objective standard of reasonableness and (2) the deficient performance prejudiced the
        defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). In evaluating a claim of
        ineffective assistance, we will not second-guess reasonable strategic decisions that counsel
        made at trial. People v. Sharp, 2015 IL App (1st) 130438, ¶ 125.
¶ 102       We deem counsel’s agreement to replay the 911 recording in the courtroom in lieu of
        sending it to the jury room during deliberations to be a reasonable strategic decision. If the
        recording had gone back to the jury room (with a CD player), the jury could have played the
        recording over and over again in an attempt to ascertain everything Glore said to the 911
        operator. (As we mentioned earlier, Glore was sobbing uncontrollably throughout most of the

                                                   - 15 -
        recording.) In our opinion, no wise trial counsel would want the jury to listen to the 911
        recording over and over again because doing so could be emotionally upsetting.
¶ 103        For instance, Glore in the recording says such things as (if we hear her correctly) “He’s
        already on probation for battery for hitting me,” and “He won’t leave me alone. He keeps
        coming back,” and “He’s trying to kill me and make me have seizures.” Absolutely nothing
        in this recording could have possibly benefited the defense, but rather, from start to finish,
        this recording was damaging to the defense. (We are quick to add that despite this
        assessment, the admission of the recording was entirely appropriate. See People v. Pelo, 404
        Ill. App. 3d 839, 867 (2010) (this court explained that evidence has an improper prejudicial
        effect only when the evidence in question “will somehow cast a negative light upon a
        defendant for reasons that have nothing to do with the case on trial”). In other words, the jury
        would be deciding the case on an improper basis, such as sympathy, hatred, contempt, or
        horror. Clearly, the evidence at issue here had everything to do with the case on trial.)
¶ 104        For the reasons stated, we can readily understand why a reasonable defense counsel
        would gratefully embrace the suggestion that the jury hear the 911 recording replayed only
        once in the courtroom as opposed to who knows how many times in the jury room.
¶ 105        Accordingly, we find no deficient performance by trial counsel, and we reject defendant’s
        claim of ineffective assistance.

¶ 106                                    D. Clerk-Imposed Fines
¶ 107       In the sentencing hearing and in its sentencing order, the trial court imposed no fines
        upon defendant. Even so, the circuit clerk, in a “Payment Information” sheet, listed the
        following assessments, all of which this appellate court has held to be fines: $20 for victims
        of violent crime (see People v. Smith, 2014 IL App (4th) 121118, ¶ 63), $50 as a
        court-systems assessment (see People v. Daily, 2016 IL App (4th) 150588, ¶ 30), $2 for
        Crime Stoppers (see People v. Beasley, 2017 IL App (4th) 150291, ¶ 44), $3.80 as a drug
        court assessment (absent any indication that defendant participated in drug court) (see People
        v. Bradley, 2017 IL App (4th) 150527, ¶ 25), and $15 for State Police operations (see People
        v. Millsap, 2012 IL App (4th) 110668, ¶ 31).
¶ 108       The State agrees with defendant’s argument that because the imposition of fines is
        exclusively a judicial act and because a circuit clerk is not a judge, the purported fines listed
        above are void and should be vacated. See Smith, 2014 IL App (4th) 121118, ¶¶ 18, 63;
        People v. Larue, 2014 IL App (4th) 120595, ¶ 56. We accept the State’s concession, and we
        vacate the clerk-imposed fines.

¶ 109                                       III. CONCLUSION
¶ 110       For the foregoing reasons, we affirm the trial court’s judgment, vacate the clerk-imposed
        fines, and assess $75 in costs against defendant (see 55 ILCS 5/4-2002 (West 2014)).

¶ 111      Affirmed in part and vacated in part.




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