                                                                         Digitally signed by
                                                                         Reporter of
                                                                         Decisions
                                                                         Reason: I attest to
                        Illinois Official Reports                        the accuracy and
                                                                         integrity of this
                                                                         document
                               Appellate Court                           Date: 2019.02.06
                                                                         11:34:24 -06'00'




                  People v. Stevens, 2018 IL App (4th) 160138



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            BILLY J. STEVENS, Defendant-Appellant.



District & No.     Fourth District
                   Docket No. 4-16-0138



Filed              November 20, 2018



Decision Under     Appeal from the Circuit Court of Ford County, No. 15-CF-22; the
Review             Hon. Matthew J. Fitton, Judge, presiding.



Judgment           Reversed and remanded.


Counsel on         James E. Chadd, Patricia Mysza, and Gavin J. Dow, of State Appellate
Appeal             Defender’s Office, of Chicago, for appellant.

                   Andrew L. Killian, State’s Attorney, of Paxton (Patrick Delfino,
                   David J. Robinson, and Erin Wilson Laegeler, of State’s Attorneys
                   Appellate Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE DeARMOND delivered the judgment of the court, with
                   opinion.
                   Justices Steigmann and Knecht concurred in the judgment and
                   opinion.
                                               OPINION

¶1        In February 2015, the State charged defendant, Billy J. Stevens, with two counts of
     predatory criminal sexual assault of a child. In July 2015, the trial court conducted the first jury
     trial, which resulted in a deadlocked jury and a new trial. The second jury trial took place in
     October 2015. The jury found defendant guilty, and he was sentenced to 25 years’
     imprisonment.
¶2        On appeal, defendant argues the trial court erred in (1) admonishing the prospective jurors
     pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012); (2) giving Illinois Pattern
     Jury Instructions, Criminal, No. 3.01 (4th ed. 2000) (hereinafter IPI Criminal 4th); and (3) not
     giving IPI Criminal 4th No. 11.66. Additionally, defendant argues the State committed error by
     (1) improperly bolstering the credibility of the victim, M.S., through the testimony of a
     witness; (2) questioning defendant about M.S.’s motivation to lie; (3) asking the jury about the
     message its verdict would send; and (4) bringing up details not in evidence at trial during
     closing arguments. We reverse and remand for a new trial.

¶3                                        I. BACKGROUND
¶4       Around November or December 2014, defendant was separated from his wife and was
     living in his mother’s home. During that time, his daughter, M.S., born in 2003, went to visit
     him at this residence. One night, while M.S. was watching a movie in her cousin’s room, she
     said defendant came in and hugged her. After hugging her, defendant put his hand in her
     vagina and then did the same with his penis. M.S. testified defendant had done this repeatedly
     throughout M.S.’s life since she was three or four. After the most recent occurrence in
     November or December 2014, M.S. told her school’s social worker, who notified the guidance
     counselor and the police.
¶5       As a result, in February 2015, the State charged defendant by information with two counts
     of predatory criminal sexual assault of a child, alleging defendant, who was 17 years of age or
     older, committed an act of sexual penetration with M.S., who was under 13 years of age, in that
     defendant placed his penis (count I) and his finger (count II) in the vagina of M.S on or about
     November 2014 through December 2014 (720 ILCS 5/11-1.40(a)(1) (West 2014)).
¶6       The first trial was conducted in July 2015 and resulted in a hung jury. Defendant was
     retried on the same charges in October 2015. At the second jury trial, the State called four
     witnesses, M.S., Kristina Schuler, Mary Bunyard, and Sergeant Chad Johnson. Defendant was
     the sole witness in his case-in-chief.
¶7                                              A. M.S.
¶8       M.S. testified in detail about the night she was at her grandmother’s house and what her
     father did to her, stating she was 11 years old at the time. She described the house she lived in
     with her mother and brother as a two-story home, with her room being upstairs. She stated, on
     some occasions when she would fight with her mother, defendant would come to her room to
     calm her down and then molest her, which began around the age of three or four. After the most
     recent occurrence at her grandmother’s house, M.S. told her school’s social worker, Schuler.




                                                  -2-
¶9                                         B. Kristina Schuler
¶ 10       Schuler is the social worker at M.S.’s school and has served in that capacity for the past
       nine years. Schuler knew M.S. from working with her on an individualized education plan,
       beginning in August 2014. They would meet weekly for about 20 minutes each session. She
       described M.S. as “very quiet, very shy” when she first met her, but as the year progressed,
       M.S. became more comfortable. She also testified that as time went on she had to do less
       prodding to get information from M.S. and never had a problem with M.S. lying. On February
       5, 2015, M.S. came to her regular session with Schuler and said she wanted to tell her and the
       school guidance counselor, “Mrs. Johnson,” something. The guidance counselor was
       unavailable, so Schuler asked if M.S. wanted to just speak to her. M.S. said her father “sexually
       abused” her and touched her, pointing to her private area. Schuler did not ask any follow-up
       questions in order to avoid interfering with any criminal investigation and contacted “the
       authorities.” She told M.S. she was sorry to hear about these allegations and she would contact
       people to make sure M.S. was safe.

¶ 11                                         C. Mary Bunyard
¶ 12       Bunyard is a forensic interviewer with the Children’s Advocacy Center, where she has
       worked for two years. Prior to that, she was in law enforcement for 20 years, 10 years as a
       patrol officer and 10 years as a detective. She interviewed M.S. while representatives from the
       Department of Children and Family Services and law enforcement watched from another
       room. She testified that she asked mostly open-ended questions in the interview. The interview
       with M.S. was audio recorded and played to the jury as an exhibit during Bunyard’s testimony.
       After playing the audio recording, the State asked where M.S. said she was touched, and
       Bunyard said M.S. indicated she was touched in her “private area.”

¶ 13                                     D. Sergeant Chad Johnson
¶ 14       Sergeant Johnson is a sergeant with the Paxton Police Department and was the lead
       investigator in this case. He interviewed defendant and stated defendant would have been 34
       years old at the time of the alleged conduct. In the interview, defendant denied the allegations
       but never said M.S. was lying. When asked if defendant had an explanation for the allegations,
       defendant referenced a conversation with his daughter about whether the new bras she bought
       with her mother fit, but he claimed he did not touch her. Sergeant Johnson also observed the
       interview with M.S. The details of her timeline and defendant’s timeline were “right on track,”
       meaning the timelines “were exactly the same.”

¶ 15                                           E. Defendant
¶ 16       Defendant testified on his own behalf and stated he had been living with his mother for the
       past three months or so since he was separated from his wife. He testified about his convictions
       for theft and driving with a revoked license. He described his relationship with his daughter as
       good and said M.S. would come to him if she had problems. He described the family home
       before the separation as a two-story home where he and his wife shared a bedroom on the first
       floor and the two children each had their own bedroom on the second floor. He denied each of
       the specific allegations in his testimony. He also admitted, when M.S. came over to visit while
       defendant was living in his mother’s home, they would sleep in the same room, with M.S. on
       one bed and defendant on another. He also admitted on cross-examination that he would go to

                                                   -3-
       M.S.’s room at times to calm her down. On cross-examination, he was unable to give any
       reason why his daughter was making up these “horrible accusations.”
¶ 17       The jury found defendant guilty on both counts, and the trial court sentenced defendant to
       25 years’ imprisonment in the Illinois Department of Corrections.
¶ 18       This appeal followed.

¶ 19                                             II. ANALYSIS
¶ 20                                    A. Voir Dire Admonishments
¶ 21        Defendant argues the trial court erred by failing to properly inquire of the jury pursuant to
       Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), commonly referred to as the four Zehr
       principles (see People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984)). Specifically,
       defendant contends the court failed to ask prospective jurors whether they understood the
       State’s burden of proof or that defendant was not required to present evidence. The State
       concedes error on this contention, and we accept the State’s concession.
¶ 22        Rule 431(b) requires the trial court to ask each potential juror
                “whether that juror understands and accepts the following principles: (1) that the
                defendant is presumed innocent of the charge(s) against him or her; (2) that before a
                defendant can be convicted the State must prove the defendant guilty beyond a
                reasonable doubt; (3) that the defendant is not required to offer any evidence on his or
                her own behalf; and (4) that if a defendant does not testify it cannot be held against him
                or her; however, no inquiry of a prospective juror shall be made into the defendant’s
                decision not to testify when the defendant objects.” Ill. S. Ct. R. 431(b) (eff. July 1,
                2012).
       “The language of Rule 431(b) is clear and unambiguous,” mandating “a specific question and
       response process.” People v. Thompson, 238 Ill. 2d 598, 607, 939 N.E.2d 403, 409-10 (2010).
       A trial court “must ask each potential juror whether he or she understands and accepts each of
       the principles in the rule,” and “the rule requires an opportunity for a response from each
       prospective juror on their understanding and acceptance of those principles.” Thompson, 238
       Ill. 2d at 607. We review de novo whether the trial court followed Rule 431(b). People v.
       Wrencher, 2011 IL App (4th) 080619, ¶ 37, 959 N.E.2d 693.
¶ 23        Here, the trial court asked the prospective jurors whether they were “unable and unwilling
       to accept and embrace” that “all persons charged with a crime are presumed to be innocent.”
       Second, it asked the jurors whether they were “unable or unwilling to accept or embrace and
       apply the principle” that “it is the burden of the State who has brought the charge to prove the
       Defendant guilty beyond a reasonable doubt.” Regarding the third principle that “defendant
       has no obligation to testify on his own behalf,” the court asked if anyone had “a problem with
       that principle.” The court inquired whether any jurors had “a problem or cannot accept” the
       fourth principle concerning defendant having no obligation to call any witnesses or present any
       evidence in his defense. Later in voir dire, the court asked the jurors as a group, “[d]o you
       understand this is a criminal case and the Defendant is presumed innocent as he is charged?”
       The court followed up by asking, “You understand the Defendant in this case has a
       constitutional right to not testify? If in fact he does not testify that in anyway [sic] cannot make
       any difference in you arriving at any decision you might make.” The court failed to ask



                                                    -4-
       whether the jurors understood the State’s burden of proving defendant guilty beyond a
       reasonable doubt and that defendant was not required to offer any evidence on his behalf.
¶ 24        In People v. Wilmington, 2013 IL 112938, 983 N.E.2d 1015, our supreme court determined
       whether a trial court erred in following Rule 431(b) by asking the prospective jurors if they
       disagreed with three of the principles enumerated in Rule 431(b). Our supreme court stated it
       was arguable whether the trial court’s inquiry, asking for disagreement and getting none, was
       equivalent to asking for acceptance. Wilmington, 2013 IL 112938, ¶ 32. However, the court
       held “the trial court’s failure to ask jurors if they understood the four Rule 431(b) principles is
       error in and of itself.” (Emphasis in original.) Wilmington, 2013 IL 112938, ¶ 32.
¶ 25        In this case, it is arguable the trial court asked the prospective jurors whether they could
       accept the Rule 431(b) principles by asking if they had a problem with them. As we stated in
       People v. McGuire, 2017 IL App (4th) 150695, ¶ 35, 92 N.E.3d 494, “trial judges must strictly
       comply with Rule 431(b).” The rule ensures jurors understand and accept the bedrock
       principles of our criminal law, and failing to comply “could threaten the integrity of the jury’s
       verdict” or “cast doubt on any guilty verdict a jury might return.” McGuire, 2017 IL App (4th)
       150695, ¶ 35. “Trial courts must exercise diligence when instructing the jury of the Zehr
       principles as codified in Rule 431(b) and must not deviate in any way from the precise
       language chosen by the Illinois Supreme Court to be in that rule.” McGuire, 2017 IL App (4th)
       150695, ¶ 35. In order to protect the record, prosecutors must also be aware of the strict
       requirement of Rule 431(b) so “they can alert the trial court to any improper deviation from
       that rule.” McGuire, 2017 IL App (4th) 150695, ¶ 35.
¶ 26        In this case, it is clear the court never asked whether the jurors understood the State’s
       burden to prove defendant guilty beyond a reasonable doubt or the fact that defendant was not
       required to present evidence on his own behalf, and thus the court committed error. The
       language of Rule 431(b) is clear; the four principles are set forth succinctly, and the two
       questions to be asked, in whatever manner the court chooses, are simple: “do you understand”
       and “do you accept.”
¶ 27        Defendant did not object to the admonishments during the voir dire. Ordinarily, “[t]o
       preserve a purported error for consideration by a reviewing court, a defendant must object to
       the error at trial and raise the error in a posttrial motion.” People v. Sebby, 2017 IL 119445,
       ¶ 48, 89 N.E.3d 675. If not, the error results in forfeiture. Sebby, 2017 IL 119445, ¶ 48.
       However, there is a well-established exception to that principle. Sebby, 2017 IL 119445, ¶ 48.
       Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967) provides “substantial or what have
       become known as plain errors may be noticed although they were not brought to the attention
       of the trial court.” (Internal quotation marks omitted.) Sebby, 2017 IL 119445, ¶ 48. This
       voir dire error is subject to a plain-error analysis. Wilmington, 2013 IL 112938, ¶ 31. For the
       sake of convenience and to avoid repetition, we will address each of defendant’s claimed
       unpreserved errors in one plain-error analysis later.

¶ 28                                  B. IPI Criminal 4th No. 3.01
¶ 29      Defendant argues the trial court erred in giving IPI Criminal 4th No. 3.01, which states the
       prosecution is not required to prove that the offense was committed on the particular date
       charged, to the jury. We disagree.



                                                    -5-
¶ 30       “Generally, the decision to give certain jury instructions rests with the trial court, and that
       decision will not be reversed on appeal absent an abuse of that discretion.” People v. Hale,
       2012 IL App (4th) 100949, ¶ 19, 967 N.E.2d 476.
               “Giving IPI Criminal 3d No. 3.01 [(Illinois Pattern Jury Instructions, Criminal, No.
               3.01 (3d ed. 1992))] may result in reversible error, (1) where inconsistencies between
               the date charged in the indictment and the evidence presented at trial are so great that
               the defendant is misled in presenting his defense or (2) when he presents an alibi for the
               time alleged in the indictment and is thereby prejudiced because he failed to gather
               evidence and witnesses for the time actually proved by the State.” People v. Suter, 292
               Ill. App. 3d 358, 364, 685 N.E.2d 1023, 1028 (1997).
¶ 31       Here, defendant asserts no alibi to the allegations and in fact acknowledged he was present
       on the night in question; thus, the second prong is not invoked here. Instead, the question
       becomes whether there is any variance in the dates alleged and whether the evidence misled
       defendant in the preparation of his defense.
¶ 32       Defendant’s argument is analogous to that of the defendant in People v. Cregar, 172 Ill.
       App. 3d 807, 822-23, 526 N.E.2d 1376, 1386-87 (1988). In Cregar, 172 Ill. App. 3d at 823, the
       defendant contended the lack of an instruction on other crimes was exacerbated by an Illinois
       Pattern Jury Instructions, Criminal, No. 3.01 (2d ed. 1981) instruction stating the State need
       not prove the offense occurred on the exact date charged. This court stated, in Cregar, it was
       not error because the date alleged in the indictment was immaterial as long as the State proved
       the offense occurred at any time within the statute of limitations. Cregar, 172 Ill. App. 3d at
       823.
¶ 33       In this case, as in Cregar, defendant argued the error of submitting the instruction as to
       variance of dates was exacerbated by not instructing the jury about other-crimes evidence
       brought out by the testimony regarding molestation of M.S. from the age of three or four. We
       find that argument unconvincing, as we did in Cregar. See People v. Barlow, 188 Ill. App. 3d
       393, 402-03, 544 N.E.2d 947, 953 (1989) (“[B]ecause the date of the offense is not an essential
       element in child sex offenses [citation], any change in the dates does not alter the nature of the
       crime charged.”). The testimony clearly centered around the incident during November or
       December 2014. Both defendant and M.S. spoke about that particular time period. The
       other-crimes evidence was more vague, not specific, and clearly admissible. Even defendant
       acknowledged the admissibility of propensity evidence pursuant to section 11-7.3(a)(1), (b) of
       the Code of Criminal Procedure of 1963 (725 ILCS 5/115-7.3(a)(1), (b) (West 2014)).
       Moreover, defendant’s defense was also not time-specific and was a complete denial.
       Defendant was then directed to the specific time frame of November 2014 and again
       unequivocally denied “anything of a sexual nature.” For good measure, his attention was then
       directed to M.S.’s testimony the day before, and he again denied “the things she said took place
       between the two of [them].”
¶ 34       Exactly when in November through December 2014 was not clear. M.S. said the last
       occurrence was at her grandmother’s house “close to the end of winter,” between
       Thanksgiving and Christmas. Otherwise the testimony about other incidents of sexual abuse
       was very general in nature. Defendant said he moved out of the home with M.S. and her mother
       in November 2014 and moved in with his mother, M.S.’s grandmother. He said she came to
       visit on only two occasions where she stayed overnight, again without being specific.


                                                    -6-
¶ 35       According to defendant, regardless of the date, he did not do it. Under the circumstances, in
       light of the broad range of dates charged between November 2014 and December 2014, the
       court giving IPI Criminal 4th No. 3.01 was appropriate and caused no prejudice to defendant.

¶ 36                                    C. IPI Criminal 4th No. 11.66
¶ 37       Defendant argues the trial court erred by failing to give IPI Criminal 4th No. 11.66 to the
       jury. The State concedes error, and we accept its concession.
¶ 38       IPI Criminal 4th No. 11.66 instructs a jury to determine the weight to be given to hearsay
       statements at trial, considering the “age and maturity” of the victim, “the nature of the
       statement[s], [and] the circumstances under which *** statement[s]” were made.
                “In a prosecution for a physical or sexual act perpetrated upon or against a child under
                the age of 13 ***, the following evidence shall be admitted as an exception to the
                hearsay rule:
                        ***
                        (2) testimony of an out of court statement made by the victim describing any
                    complaint of such act or matter or detail pertaining to any act which is an element of
                    an offense which is the subject of a prosecution for a sexual or physical act against
                    that victim.
                    (b) Such testimony shall only be admitted if:
                        (1) The court finds in a hearing conducted outside the presence of the jury that
                    the time, content, and circumstances of the statement provide sufficient safeguards
                    of reliability; and
                        (2) The child or moderately, severely, or profoundly intellectually disabled
                    person either:
                            (A) testifies at the proceeding; ***
                                                      ***
                    (c) If a statement is admitted pursuant to this Section, the court shall instruct the
                jury that it is for the jury to determine the weight and credibility to be given the
                statement and that, in making the determination, it shall consider the age and maturity
                of the child, or the intellectual capabilities of the moderately, severely, or profoundly
                intellectually disabled person, the nature of the statement, the circumstances under
                which the statement was made, and any other relevant factor.” 725 ILCS
                5/115-10(a)(2), (b)(1), (b)(2)(A), (c) (West 2014).
¶ 39       Here, the statements by Bunyard and Schuler were hearsay statements made by M.S., who
       was 11 years old at the time of the statements, and M.S. testified at trial. Under a clear reading
       of section 115-10 of the Code of Criminal Procedure of 1963, trial court was required to give
       IPI Criminal 4th No. 11.66. 725 ILCS 5/115-10(c) (West 2014). Since the court did not, we
       find it committed error. See People v. Mitchell, 155 Ill. 2d 344, 354, 614 N.E.2d 1213, 1217
       (1993). This error was also not preserved by defendant through objection or posttrial motion
       and is subject to plain-error review.




                                                    -7-
¶ 40                                    D. Bolstering Credibility
¶ 41       Defendant argues the State repeatedly engaged in conduct that improperly bolstered M.S.’s
       credibility. We agree.
¶ 42       “Because questions of credibility are to be resolved by the trier of fact [citation] ‘it is
       generally improper to ask one witness to comment directly on the credibility of another
       witness.’ ” People v. Boling, 2014 IL App (4th) 120634, ¶ 121, 8 N.E.3d 65 (quoting People v.
       Becker, 239 Ill. 2d 215, 236, 940 N.E.2d 1131, 1143 (2010)). “[O]ne witness should not be
       allowed to express his [or her] opinion as to another witness’s credibility.” People v.
       Henderson, 394 Ill. App. 3d 747, 754, 915 N.E.2d 473, 478 (2009).

¶ 43                                      1. Schuler’s Testimony
¶ 44       Defendant argues the State improperly bolstered M.S.’s credibility by eliciting statements
       from Schuler about M.S.’s veracity. We agree.
¶ 45       During the State’s direct examination of Schuler, the following exchange occurred:
                   “Q. Now, as far as—I am asking veracity, telling the truth, did you ever have a
                problem with [M.S.] lying to you about things?
                   A. No, no, I did not.”
       The State argues the aforementioned exchange was not a way to bolster credibility but instead
       laid the foundation for M.S.’s character for truthfulness; both are impermissible.
¶ 46       In People v. Brothers, 2015 IL App (4th) 130644, 39 N.E.3d 1101, this court analyzed
       whether the State committed error when the officer stated the victim was very credible in a
       sexual assault case. When the State asked about the demeanor of the victim, the officer stated,
       “She was still in shock” “but very believable, very credible.” (Internal quotation marks
       omitted.) Brothers, 2015 IL App (4th) 130644, ¶ 18. This court said that was improper even
       though the officer volunteered the information without prompting. Brothers, 2015 IL App
       (4th) 130644, ¶ 126.
¶ 47       A witness is only permitted to express an opinion about another witness’s character for
       truthfulness after their character for truthfulness has been attacked by reputation or opinion
       evidence. See Ill. R. Evid. 608 (eff. Jan. 6, 2015). Such was not the case here. The State elicited
       the aforementioned testimony in its direct examination of its second witness, Schuler. Before
       that, the only inquiry by defendant’s attorney centered on a specific incident, not reputation or
       character. In response to a question about whether she told her mother about the ongoing
       abuse, the victim said, “[My mom] won’t listen to me.” Defense counsel merely entered the
       door the prosecutor opened by asking one question about whether her mother believed her.
       There was no reason for the testimony to come in other than to bolster M.S.’s credibility in an
       improper way. See Brothers, 2015 IL App (4th) 130644, ¶ 126. As such, we find this was in
       error and subject to plain-error review.

¶ 48                     2. Questioning of Defendant and Defendant’s Statements
¶ 49       Defendant argues the State improperly elicited testimony from him and Sergeant Johnson
       about why M.S. would lie. The State concedes error on this issue, and we accept the State’s
       concession.
¶ 50       “It is well established that it is improper for a prosecutor to ask a defendant his opinion on
       the veracity of other witnesses, as such questions intrude on the jury’s function to determine

                                                    -8-
       witness credibility and also demean and ridicule the defendant.” People v. Schaffer, 2014 IL
       App (1st) 113493, ¶ 49, 4 N.E.3d 176.
¶ 51       In Schaffer, 2014 IL App (1st) 113493, the appellate court analyzed the State’s questions to
       the defendant on cross-examination in an aggravated criminal sexual assault and home
       invasion case. The defendant was asked by the prosecutor multiple times if the victim made up
       certain details, such as the defendant charging into her bedroom, threatening to kill her, and
       taking her wedding band. Schaffer, 2014 IL App (1st) 113493, ¶ 50. The court deemed this was
       improper, as the questions were “designed to demean and ridicule [the] defendant.” Schaffer,
       2014 IL App (1st) 113493, ¶ 51. The court in that case found plain error where the evidence
       was closely balanced and hinged on a credibility determination, stating “the prosecution’s
       improper cross-examination denied [the] defendant a fair trial.” Schaffer, 2014 IL App (1st)
       113493, ¶ 58.
¶ 52       Here, the prosecutor cross-examined defendant about the credibility of M.S. as follows:
                   “Q. And you have no idea why she would make something like this up?
                   A. No, I do not.
                   Q. Did you have a good relationship with her?
                   A. Yes, I did.
                   Q. So out of the blue your 11[-], now 12-year-old daughter shows up and is making
               these horrible accusations about you and you have no idea why?
                   A. Yes.”
¶ 53       The State clearly asked defendant to comment on the veracity of another witness, M.S.,
       which is improper. See Schaffer, 2014 IL App (1st) 113493, ¶ 49. This error was exacerbated
       in closing arguments, when the prosecutor said, “But he can’t come up with any particular
       reason why she would lie.” While at times this error could be harmless, “reversal is warranted
       when the evidence is closely balanced and the credibility of the witnesses is a crucial factor
       underlying the jury’s determination of guilt or innocence.” Schaffer, 2014 IL App (1st)
       113493, ¶ 49. As this error is unpreserved, we will review under a plain-error analysis to
       evaluate if the evidence is closely balanced.

¶ 54                                         E. Closing Argument
¶ 55        Defendant argues the State committed reversible error with certain comments made during
       closing argument. We agree.
¶ 56        Prosecutors have “wide latitude in making a closing argument and [are] permitted to
       comment on the evidence and any fair, reasonable inferences it yields.” People v. Glasper, 234
       Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). “It is, however, improper for the prosecutor to
       argue assumptions or facts not based upon the evidence in the record.” People v. Kliner, 185
       Ill. 2d 81, 151, 705 N.E.2d 850, 885 (1998). “A closing argument must be viewed in its
       entirety, and the challenged remarks must be viewed in their context. [Citation.] Statements
       will not be held improper if they were provoked or invited by the defense counsel’s argument.”
       Glasper, 234 Ill. 2d at 204. However, “[i]mproper remarks warrant reversal only where they
       result in substantial prejudice to the defendant, considering the content and context of the
       language, its relationship to the evidence, and its effect on the defendant’s right to a fair and
       impartial trial.” Kliner, 185 Ill. 2d at 151-52.


                                                   -9-
¶ 57                            1. Comment on Facts Outside of the Evidence
¶ 58       Defendant argues the State committed error when it said the cunning nature of sexual
       predators is something “we” see on a daily basis. We agree.
¶ 59       In this case, the State on rebuttal stated as follows:
               “[Defense counsel] argues that [defendant] must have been so cunning and so slick, he
               can do it over and over again and no one has a clue. Absolutely. We see that everyday
               in the news. We see that everyday, predators who pick out the perfect victim, the victim
               they know who is not going to tell on them, the victim they can do these things over and
               over again and no one is going to believe them or they are not going to tell anybody.
               That’s not unheard of, ladies and gentlemen. We see it on a daily basis.”
¶ 60       In People v. Lowry, 354 Ill. App. 3d 760, 771, 821 N.E.2d 649, 661 (2004), the appellate
       court stated it was improper in closing arguments to refer to “studies” to explain the
       discrepancies in witnesses’ testimonies where there was no evidence of the “studies”
       referenced. In People v. Adams, 2012 IL 111168, ¶ 16, 962 N.E.2d 410, the State argued in
       closing that the officer who testified had to be believed because if the officer lied, he would be
       risking his job and his freedom. Our supreme court said this statement was “impermissible
       speculation, as no evidence was introduced at trial” to back those claims by the State. Adams,
       2012 IL 111168, ¶ 20.
¶ 61       Here, the statement about how cunning or calculating sexual offenders that the State sees
       on a daily basis are was not presented as evidence in the trial. The State argues the statement is
       a permissible comment based on the jury’s common knowledge. However, these comments
       went beyond talking about daily experiences of jurors and their knowledge of sexual abuse but
       went to matters outside of the trial. Had the State presented expert testimony to assist in
       exploring M.S.’s behavior under section 115-7.2 of the Code of Criminal Procedure of 1963,
       the comments might have been admissible. See 725 ILCS 5/115-7.2 (West 2014). Here,
       however, the State was inferring knowledge of the habits of sexual predators as a matter of
       common knowledge. Therefore, the State injected error with its comments and, as there was no
       objection at trial or in a posttrial motion, we review this error under a plain-error analysis.

¶ 62                              2. Comment About Message to Victims
¶ 63       Defendant argues the State committed error by asking the jury what kind of message it
       would send to victims if defendant was acquitted. We agree.
¶ 64       “[A] defendant’s guilt may be proved only by ‘legal and competent’ facts, ‘uninfluenced
       by bias or prejudice raised by irrelevant evidence.’ ” People v. Blue, 189 Ill. 2d 99, 129, 724
       N.E.2d 920, 936 (2000) (quoting People v. Bernette, 30 Ill. 2d 359, 371, 197 N.E.2d 436, 443
       (1964)). “It is a basic principle of our criminal justice system that the prosecutor owes the
       defendant a duty of fairness.” People v. Dunsworth, 233 Ill. App. 3d 258, 269, 599 N.E.2d 29,
       36 (1992). “Because this duty extends throughout the trial and includes closing arguments, the
       prosecutor has an ethical obligation to refrain from presenting improper and prejudicial
       argument.” People v. Liner, 356 Ill. App. 3d 284, 292, 826 N.E.2d 1274, 1282 (2005). “The
       broader problems of crime in society should not be the focus of a jury considering the guilt or
       innocence of an individual defendant, lest the remediation of society’s problems distract jurors
       from the awesome responsibility with which they are charged.” People v. Johnson, 208 Ill. 2d
       53, 77-78, 803 N.E.2d 405, 419 (2003).


                                                   - 10 -
¶ 65       Here, the prosecutor in closing arguments stated as follows:
               “All we have are [M.S.’s] words. That has to be enough, ladies and gentlemen. Think
               of the message that you send to victims. Think of the message that we would be
               sending to victims by our Criminal Justice System, “Hey, don’t you come forward.
               Don’t say anything, don’t even complain about these unless you got some
               corroborating evidence, unless you got DNA [(deoxyribonucleic acid)] or confession
               from the person, don’t even come forward because you will not get over that burden.
                   That’s not true, ladies and gentlemen. Her words are absolutely and can be
               absolutely enough.”
¶ 66       In Liner, 356 Ill. App. 3d at 291, the appellate court reviewed whether the prosecutor’s
       closing statement was improper. In closing arguments, the prosecutor said, “[Y]ou’re not just
       protecting [the victim]. You’re protecting every child and every citizen in every home in this
       county.” (Internal quotation marks omitted.) Liner, 356 Ill. App. 3d at 291. The court held the
       comments were improper since they were made to inflame the passions of the jury about a
       member of a class of “which we, as a society, are sympathetic.” Liner, 356 Ill. App. 3d at 297.
¶ 67       In People v. Fletcher, 156 Ill. App. 3d 405, 410, 509 N.E.2d 625, 629-30 (1987), the
       appellate court looked at the propriety of the State’s closing argument. There, the State said, “If
       you want to find him not guilty because that was a, just a seven year old testifying, you can do
       so. But in doing so, you are saying that a seven year old’s testimony can never convict a
       defendant.” (Internal quotation marks omitted.) Fletcher, 156 Ill. App. 3d at 410. The First
       District said the aforementioned comment was erroneous and “went to matters not in
       evidence.” Fletcher, 156 Ill. App. 3d at 411.
¶ 68       In this case, the statements about the message it would send to child victims of sexual
       abuse was intended to inflame the emotions of the jury for a sympathetic class—children. As in
       Fletcher, the statement was not about the testimony at trial but instead went to a broader issue
       not in evidence. As such, it was improper for the State to ask the jurors to send a communal
       message by their verdict. This error was not preserved, and we will review this as a matter of
       plain error as well.

¶ 69                                            F. Plain Error
¶ 70       Defendant argues the aforementioned unpreserved errors should be reviewed under a
       plain-error analysis and this court should vacate the verdict and remand for a new trial. We
       agree.
¶ 71       “Plain errors or defects affecting substantial rights may be noticed although they were not
       brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967).
               “[T]he plain-error doctrine bypasses normal forfeiture principles and allows a
               reviewing court to consider unpreserved error when either (1) the evidence is close,
               regardless of the seriousness of the error, or (2) the error is serious, regardless of the
               closeness of the evidence. In the first instance, the defendant must prove ‘prejudicial
               error.’ That is, the defendant must show both that there was plain error and that the
               evidence was so closely balanced that the error alone severely threatened to tip the
               scales of justice against him. The State, of course, can respond by arguing that the
               evidence was not closely balanced, but rather strongly weighted against the defendant.
               In the second instance, the defendant must prove there was plain error and that the error


                                                   - 11 -
               was so serious that it affected the fairness of the defendant’s trial and challenged the
               integrity of the judicial process.” People v. Herron, 215 Ill. 2d 167, 186-87, 830 N.E.2d
               467, 479-80 (2005).
       In the second instance, “[p]rejudice to the defendant is presumed because of the importance of
       the right involved, ‘regardless of the strength of the evidence.’ ” (Emphasis in original.)
       Herron, 215 Ill. 2d at 187 (quoting Blue, 189 Ill. 2d at 138). Under the first prong of plain-error
       analysis, “[w]hat makes an error prejudicial is the fact that it occurred in a close case where its
       impact on the result was potentially dispositive.” Sebby, 2017 IL 119445, ¶ 68. Thus, whether
       the error is “trivial or de minimis” is “simply the wrong inquiry. Sebby, 2017 IL 119445, ¶ 69.
       “The only question in a first-prong case, once clear error has been established, is whether the
       evidence is closely balanced.” Sebby, 2017 IL 119445, ¶ 69. “In both instances, the burden of
       persuasion remains with the defendant.” Herron, 215 Ill. 2d at 187. “In determining whether
       the evidence adduced at trial was close, a reviewing court must evaluate the totality of the
       evidence and conduct a qualitative, commonsense assessment of it within the context of the
       case.” Sebby, 2017 IL 119445, ¶ 53. “A reviewing court’s inquiry involves an assessment of
       the evidence on the elements of the charged offense or offenses, along with any evidence
       regarding the witnesses’ credibility.” Sebby, 2017 IL 119445, ¶ 53. “The issue before us,
       however, does not involve the sufficiency of close evidence but rather the closeness of
       sufficient evidence.” Sebby, 2017 IL 119445, ¶ 60.
¶ 72       Here, defendant argues plain error under the closely balanced prong. In Sebby, our supreme
       court determined whether the evidence was closely balanced due to conflicting credible
       accounts of the alleged crime of resisting a peace officer. Sebby, 2017 IL 119445, ¶ 60. There
       the court mentioned the two different accounts were plausible, “and neither version [was]
       supported by corroborating evidence.” Sebby, 2017 IL 119445, ¶ 62. As such, the court
       believed the evidence was closely balanced as in People v. Naylor, 229 Ill. 2d 584, 606-607,
       893 N.E.2d 653, 667-68 (2008).
¶ 73       In Naylor, 229 Ill. 2d at 606-07, our supreme court analyzed whether the case was closely
       balanced because of a “contest of credibility.” In that case, the court stated the defendant’s
       testimony was “credible in that it [was] consistent with much of the officers’ testimony and the
       circumstances of his arrest.” Naylor, 229 Ill. 2d at 607. Given the opposing versions of the
       same event and no extrinsic evidence to corroborate either version, the case “necessarily
       involved the court’s assessment of the credibility of the two officers against that of [the]
       defendant.” Naylor, 229 Ill. 2d at 607.
¶ 74       Here, this case boiled down to a clear question of credibility between M.S. and defendant.
       Although other witnesses testified, three of them restated what they were told by M.S or
       defendant. Sergeant Johnson mentioned the similarities in the description of events, which
       makes defendant’s account more plausible as was argued in Naylor, 229 Ill. 2d at 607. The
       State argues defendant made an inculpatory statement to police, referring to one exchange
       during the direct examination of Sergeant Johnson:
                    “Q: And as far as [M.S.’s] room, in particular, did he ever say he went into her
               room? Was there ever anything in the conversation with the Defendant about that?
                    A: Yes, she had talked about an incident once where she was jumping on the bed,
               and he had come up there and yelled at her, and had done somethings [sic], and he
               claimed that he never would ever go into her room, wouldn’t come up to her bedroom.”


                                                   - 12 -
       At best, this qualifies as a potentially inconsistent statement by defendant since he testified at
       trial that he had, on occasion, gone upstairs to her bedroom when they lived together to calm
       her down. If the State had presented evidence of a medical examination of M.S. revealing
       evidence of sexual activity, regardless of how recent, or expert testimony regarding the
       frequently observed effects on child sexual abuse victims in school or around other people, this
       may not have been solely a question of credibility. In cases where the evidence is a contest of
       credibility and there is no extrinsic evidence, the evidence is closely balanced. See Sebby, 2017
       IL 119445, ¶ 63; see also Naylor, 229 Ill. 2d at 607. It is the jury’s job to make credibility
       determinations, and the various errors here interfered with its ability to do that.
¶ 75        The failure to properly admonish the jury as to the four basic Zehr principles in criminal
       prosecutions is plain error. Our supreme court has been clear that especially in close cases, a
       failure to follow Rule 431(b) can create reversible error by itself. The improper bolstering of
       M.S.’s testimony tipped the scale, especially in light of the failure to provide a complete
       instruction on how to even evaluate a child victim’s testimony. Demeaning or ridiculing
       defendant also undermined his credibility, which was very important as the jury was asked to
       determine which witness it found more credible. The closing argument statements threatened
       the fairness of the trial and allowed a jury to convict not on the evidence but instead based on
       emotion or information not properly presented. The cumulative effect of these errors in
       conjunction with the closely balanced nature of the case requires a new trial. See Sebby, 2017
       IL 119445, ¶¶ 68-69 (finding a defendant must only show error and a closely balanced case to
       be entitled to a new trial).
¶ 76        While we must reverse defendant’s conviction, we find the evidence was sufficient to
       prove defendant guilty beyond a reasonable doubt. The jury was perfectly justified in believing
       the testimony of M.S., and the credible testimony of a victim without more can be sufficient to
       justify a conviction. See People v. Summers, 353 Ill. App. 3d 367, 372, 818 N.E.2d 907, 977
       (2004); see also People v. Johnson, 2016 IL App (4th) 150004, ¶ 32, 55 N.E.3d 32 (finding the
       jury could give more weight to the victim’s testimony over the defendant’s and find the
       defendant guilty off the victim’s testimony alone). Thus, we find there is no double jeopardy
       impediment to a new trial. See Hale, 2012 IL App (4th) 100949, ¶ 26. However, we reach no
       conclusion regarding defendant’s guilt that would be binding on retrial. See Naylor, 229 Ill. 2d
       at 611.

¶ 77                                G. Ineffective Assistance of Counsel
¶ 78       Defendant argues, alternatively, the unpreserved errors should be reviewed for ineffective
       assistance of counsel if we found there was not plain error. Based upon our finding of plain
       error, analysis of this issue is unnecessary.

¶ 79                                      III. CONCLUSION
¶ 80      For the reasons stated, we reverse the trial court’s judgment and remand for a new trial.

¶ 81      Reversed and remanded.




                                                   - 13 -
