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                                     Appellate Court                              Date: 2019.06.27
                                                                                  14:28:20 -05'00'



                       People v. Meyers, 2018 IL App (1st) 140891



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



District & No.          First District, First Division
                        Docket No. 1-14-0891



Filed                   December 3, 2018
Modified upon denial
of rehearing            March 4, 2019



Decision Under          Appeal from the Circuit Court of Cook County, No. 09-CR-13562; the
Review                  Hon. Stanley J. Sacks, Judge, presiding.



Judgment                Affirmed.


Counsel on              Michael J. Pelletier, Patricia Mysza, and Christopher L. Gehrke, of
Appeal                  State Appellate Defender’s Office, of Chicago, for appellant.

                        Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
                        and Brian A. Levitsky, Assistant State’s Attorneys, of counsel), for the
                        People.
     Panel                    JUSTICE GRIFFIN delivered the judgment of the court, with opinion.
                              Presiding Justice Mikva and Justice Pierce concurred in the judgment
                              and opinion.


                                                OPINION

¶1          Chicago police officers Jason Bala, Francisco Iza, and Marc Debose were on patrol in an
       unmarked squad car when they saw a grey car run a red light. When the officers pulled the car
       over, defendant Brandon Meyers and codefendant Riley Fleming exited and fled on foot.
       Officer Iza and Officer Debose chased after defendant and Fleming as they ran across a street
       and into a vacant lot. Fleming ran through the lot diagonally and down a gangway, successfully
       evading Officer Debose. Defendant tripped over the curb before reaching the vacant lot but got
       up and kept running. About halfway through the vacant lot, defendant allegedly turned to his
       right, pulled a handgun, and fired a single shot. Officer Iza returned fire. Defendant fell to the
       ground and dropped his gun. Officer Iza placed defendant under arrest.
¶2          As it turned out, defendant and Fleming were in the process of fleeing an armed robbery
       when they ran the red light in the grey car and were pulled over. The robbery victims positively
       identified defendant and Fleming, and they were charged with a host of criminal offenses
       related to the armed robbery. None of the charges related to the armed robbery are under
       consideration here, and Fleming is not a party to this appeal.
¶3          In connection with defendant’s alleged discharge of a firearm at Officers Iza and Debose,
       he was separately charged with four counts of attempted first degree murder (counts I through
       IV) (720 ILCS 5/8-4(a), 9-1(a) (West 2008)) and two counts of aggravated discharge of a
       firearm in the direction of a peace officer (counts V and VI) (720 ILCS 5/24-1.2(a)(3) (West
       2008)). A jury acquitted defendant of the attempted first degree murder charges (720 ILCS
       5/8-4(a), 9-1(a) (West 2008)) but found defendant guilty of both counts of aggravated
       discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West
       2008)). The trial court sentenced defendant to two concurrent 19-year terms of imprisonment.
¶4          Defendant appeals his convictions for aggravated discharge of a firearm in the direction of
       a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)). He argues that (1) the evidence failed
       to prove defendant guilty beyond a reasonable doubt, (2) the trial court abused its discretion
       when it admitted testimonial and photographic evidence of a bullet hole in the siding of a
       garage at the scene of the shooting, (3) the trial court erred when it limited defendant’s
       cross-examination, and (4) the prosecutor’s closing arguments deprived defendant of a fair
       trial. We affirm.

¶5                                         BACKGROUND
¶6         On July 1, 2009, Chicago police officers Bala, Iza, and Debose were on patrol in an
       unmarked squad car when they saw a grey car run a red light. Officer Bala made a U-turn,
       activated his emergency lights, and pulled the car over. Defendant and codefendant Riley
       Fleming exited the car. As defendant exited, Officer Bala saw him place a handgun in his
       waistband. Officer Bala yelled to his fellow officers that defendant was armed. Fleming and
       defendant fled on foot, and a chase ensued: Officer Bala followed the driver in his squad car,
       while Officer Iza and Officer Debose pursued defendant and Fleming on foot.

                                                   -2-
¶7          With officers close behind, defendant and Fleming ran across a street and headed for a
       vacant lot. Fleming, followed by Officer Debose, ran through the lot diagonally and down a
       gangway, successfully evading capture. Defendant, followed by Officer Iza, tripped over the
       curb before reaching the lot but quickly got up and kept running. When defendant reached the
       lot’s halfway point, he stopped, turned to his right, and fired one shot from a gun held in his left
       hand. Officer Iza returned fire, and defendant fell to the ground. Defendant’s gun fell from his
       hand. Officer Iza placed defendant under arrest, and a Chicago police detective placed paper
       bags over defendant’s hands to preserve gunshot residue evidence. Defendant was then
       transported to a hospital. Fleming was later found hiding under a car and placed under arrest.
¶8          Shortly after defendant and Fleming’s arrest, two individuals approached police officers in
       the vicinity of the shooting to report that they had recently been robbed at gunpoint. Defendant
       and Fleming were positively identified as the robbers and charged, as codefendants, with
       various criminal offenses related to the armed robbery. Defendant was separately charged with
       four counts of attempted first degree murder of Officer Iza and Officer Debose (counts I
       through IV) (720 ILCS 5/8-4(a), 9-1(a) (West 2008)) and two counts of aggravated discharge
       of a firearm in the direction of a peace officer (counts V and VI) (720 ILCS 5/24-1.2(a)(3)
       (West 2008)). Defendant and Fleming1 proceeded to a consolidated trial before a single jury.
¶9          We highlight only those facts necessary to the resolution of the issues raised in defendant’s
       appeal.
¶ 10        At defendant’s trial, Officer Debose testified that he and his fellow officers pulled over a
       grey Ford Focus for running a red light. Defendant and Fleming exited the car, and Officer
       Debose heard Officer Bala yell that defendant had a gun. Defendant and Fleming fled on foot,
       and a chase ensued: Officer Debose followed Fleming while Officer Iza followed defendant.
       Officer Debose testified that he announced his office “9 or 10 times,” but defendant continued
       to run. Defendant had his arms at his waistband, “like he had something there.” After
       defendant tripped over the curb, Officer Debose saw defendant get up and “put his hands back
       towards his waistband.” Though his focus was directed to Fleming, who took a “hard right”
       through the vacant lot and ran down a gangway, Officer Debose testified that he heard a single
       gunshot and then a “whizzing sound.” Officer Debose ducked, got up, and turned to see
       defendant holding a gun in his left hand. Defendant’s right hand was on his left wrist. Officer
       Debose testified that he heard Officer Iza return “four or five shots” at defendant and saw him
       fall to the ground. Officer Debose admitted that he did not see defendant fire his gun.
¶ 11        Officer Iza testified that he never saw a gun in defendant’s waistband but did see defendant
       hold onto his side as he ran. Officer Iza saw defendant trip over the curb, get up, and keep
       running. When defendant reached the vacant lot’s halfway point, Officer Iza testified that
       defendant turned to the right and fired one shot at him from a gun held in defendant’s left hand.
       Officer Iza testified that he was within 10 feet of defendant when he saw the muzzle of
       defendant’s gun “flash” and then heard a “whizzing sound.” Officer Iza returned “three or four
       shots” at defendant and saw defendant fall to the ground. Officer Iza testified that he then
       placed defendant under arrest.
¶ 12        During the direct examinations of Officer Iza and Officer Debose, the State played a
       surveillance video that had recorded part of the foot chase. The video captured Fleming and

           1
           Fleming is not a party to this appeal, but his convictions were, nevertheless, affirmed on appeal.
       See People v. Fleming, 2014 IL App (1st) 113004.

                                                     -3-
       defendant running across the street with Officers Iza and Debose close behind. However, the
       video was stationary and did not capture the shooting. The trial court permitted the officers to
       narrate the events depicted in the video, but when defendant asked Officer Debose to describe
       the events captured on the video, the State objected. The trial court sustained the State’s
       objections and explained that the video “speaks for itself.” The trial continued.
¶ 13       The State introduced a photograph of a hole in the siding of a garage into evidence at trial.
       Officer Iza testified that the hole depicted in the photograph was the “entry wound” of the
       bullet discharged from defendant’s gun. Officer Iza further testified that the bullet hole aligned
       with the trajectory of the shot fired by defendant and that the hole “looked like it was fresh”
       because he did not observe any “rust” around the hole. Defendant repeatedly objected to the
       State’s line of questioning as speculative, but the trial court overruled defendant’s objections.
       On cross-examination, Officer Iza testified that he had “no way of knowing” whether the bullet
       discharged from defendant’s gun created the hole depicted in the photograph.
¶ 14       Edwin Huels, an evidence technician for the Chicago Police Department, was assigned to
       recover evidence from the scene of the shooting and testified for the State. Technician Huels
       testified that he photographed the bullet hole in the siding of the garage and described it as
       “free of rust and debris,” but he admitted that he did not access the garage or recover the bullet.
       Technician Huels did, however, recover defendant’s firearm and four 9-millimeter cartridge
       cases from the scene of the shooting. Each bullet casing was later determined by a forensic
       scientist to have been fired from Officer Iza’s gun. The bullet casing discharged from
       defendant’s gun was not recovered.
¶ 15       Robert Berk, a trace evidence analyst, testified that he received and analyzed the gunshot
       residue kit administered to defendant’s hands. Analyst Berk testified that in order to find a
       positive presence of gunshot residue, he must find three “unique” gunshot residue particles: a
       unique gunshot residue particle is one composed of “lead, barium and antimony” elements.
       Analyst Berk found three unique particles on defendant’s right hand and two unique particles
       on defendant’s left hand. Analyst Berk testified that defendant’s right hand tested positive for
       the presence of gunshot residue, which allowed him to make three conclusions: (1) defendant
       discharged a firearm, (2) defendant contacted an item that had gunshot residue on it, or
       (3) defendant had his hands in the environment of a firearm that was discharged. Analyst Berk
       testified that defendant’s left hand did not test positive.
¶ 16       The State rested its case, and defendant moved for a directed verdict. The trial court denied
       defendant’s motion. Defendant rested without calling any witnesses, and the parties proceeded
       to closing arguments.
¶ 17       During closing argument, the prosecutor commented that the photograph of the bullet hole
       in the garage was “circumstantial evidence” of defendant’s firing a gunshot in the direction of
       both Officer Iza and Officer Debose: “The whiz of the bullet goes right between [Officers Iza
       and Debose], lands right there in that garage.” The prosecutor also commented on the gunshot
       residue evidence, indicating that the gunshot residue kit administered to defendant’s hands
       identified him as left-handed. Defendant objected, arguing that the State’s comment lacked an
       evidentiary basis in the record. The trial court sustained defendant’s objection and instructed
       the jury to “disregard the comments.”
¶ 18       The prosecutor then highlighted the results of analyst Berk’s analysis, commenting that she
       “couldn’t call” defendant’s left hand “a positive” for the presence of gunshot residue “because
       there were two unique particles of gunshot residue, *** [b]ut it’s certainly not negative. It’s

                                                    -4-
       certainly[,] I submit to you[,] consistent with having fired a gun from his left hand.” Defendant
       did not object.
¶ 19        The jury found defendant guilty of two counts of aggravated discharge of a firearm in the
       direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)). The jury found defendant
       not guilty of attempted first degree murder of Officer Iza and Officer Debose (720 ILCS
       5/8-4(a), 9-1(a) (West 2008)). Defendant filed a motion for a new trial, which was denied. The
       trial court sentenced defendant to two concurrent 19-year terms of imprisonment. Defendant
       appeals his convictions.

¶ 20                                            JURISDICTION
¶ 21        On March 4, 2011, a jury found defendant guilty of two counts of aggravated discharge of
       a firearm in the direction of a peace officer. 720 ILCS 5/24-1.2(a)(3) (West 2008). The trial
       court sentenced defendant on October 3, 2011. On July 12, 2013, defendant filed a
       postconviction petition alleging that his trial counsel was ineffective for failing to file a notice
       of appeal. On March 11, 2014, the trial court granted defendant leave to file a late notice of
       appeal and dismissed his postconviction petition without prejudice. Defendant filed his notice
       of appeal on the same day. We have jurisdiction to hear defendant’s appeal. Ill. Const. 1970,
       art. VI, § 6; Ill. S. Ct. R. 603 (eff. Feb. 6, 2014); Ill. S. Ct. R. 606 (eff. July 1, 2014).

¶ 22                                             ANALYSIS
¶ 23       The issues on appeal are (1) whether the evidence presented at trial was sufficient to
       convict defendant of aggravated discharge of a firearm in the direction of a peace officer (720
       ILCS 5/24-1.2(a)(3) (West 2008)) beyond a reasonable doubt, (2) whether the trial court
       abused its discretion when it allowed Officer Iza and technician Huels to testify about the
       bullet hole in the siding of the garage and admitted the photograph of the bullet hole into
       evidence, (3) whether the trial court erred when it limited defendant’s cross-examination of
       Officer Debose, and (4) whether the prosecutor’s closing arguments deprived defendant of a
       fair trial.
¶ 24       We review the evidence presented at defendant’s trial in the light most favorable to the
       State to determine whether any rational trier of fact could have found the essential elements of
       aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3)
       (West 2008)) beyond a reasonable doubt. People v. Johnson, 2014 IL App (1st) 120701, ¶ 21;
       Jackson v. Virginia, 443 U.S. 307, 318 (1979); 720 ILCS 5/24-1.2(a)(3) (West 2008). It is the
       responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence,
       and to draw reasonable inferences from the facts. People v. Bradford, 2016 IL 118674, ¶ 12.
       We will not reverse a conviction unless the evidence is so unreasonable, improbable, or
       unsatisfactory that it raises a reasonable doubt of defendant’s guilt. People v. Jones, 2017 IL
       App (1st) 143403, ¶ 26.
¶ 25       In order to convict defendant of aggravated discharge of a firearm in the direction of a
       peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)), the jury was required to find that the
       State proved all of the elements of the offense beyond a reasonable doubt: defendant
       intentionally or knowingly discharged a firearm in the direction of a person he knew to be a
       peace officer while that officer was executing his official duties.



                                                    -5-
¶ 26       We hold that the evidence presented at defendant’s trial was sufficient to convict. The
       testimony of a single witness, if positive and credible, is sufficient to convict, even though it is
       contradicted by the defendant. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Here, the
       testimony of Officer Iza or Officer Debose alone could have supported defendant’s
       convictions.
¶ 27       At trial, Officer Iza testified that he was within 10 feet of defendant when he saw the
       muzzle of defendant’s gun flash and heard the bullet “whizz” past him. Officer Debose
       testified that he was standing three feet from Officer Iza when he heard defendant fire a shot,
       the bullet “whizz” past him, and Officer Iza return fire. Officer Debose further testified that he
       saw defendant holding a gun after the shot was fired. Defendant’s gun was recovered at the
       scene.
¶ 28       The jury credited the testimony of the officers and, after hearing all the evidence and the
       parties’ arguments based upon that evidence, convicted defendant of the charged offenses. See
       People v. Daheya, 2013 IL App (1st) 122333, ¶ 76 (credible eyewitness testimony that
       defendant fired four shots into vehicle sufficient alone to convict defendant of aggravated
       discharge of a firearm). The evidence upon which the jury based its decision was not
       unreasonable, improbable, or unsatisfactory and did not raise a reasonable doubt of
       defendant’s guilt.
¶ 29       We note, at the outset, that Officer Iza’s testimony that he saw defendant fire his gun and
       Officer Debose’s testimony that he saw defendant holding his gun after the shot was fired
       reflects an evidentiary disparity, not an evidentiary insufficiency. The jury could have found
       defendant guilty of the offenses beyond a reasonable doubt based on the direct or
       circumstantial evidence presented by Officers Iza or Debose, respectively. People v. Fleming,
       2013 IL App (1st) 120386, ¶ 74 (circumstantial evidence is sufficient to sustain a criminal
       conviction).
¶ 30       Nevertheless, defendant argues that this evidentiary disparity is consistent with the
       hypothesis that Officer Debose heard Officer Iza shoot first and turned to see defendant with
       his gun drawn in self-defense. The jury rejected this hypothesis, and so do we. See People v.
       Milka, 336 Ill. App. 3d 206, 228 (2003) (the jury decides whether or not to accept a reasonable
       hypothesis of innocence and elevate it to the status of reasonable doubt).
¶ 31       Defendant also claims that Officer Debose’s testimony was inconsistent and demonstrated
       that Officer Iza shot first. Insofar as there was an inconsistency as to whether Officer Debose
       saw defendant on the ground or upright after he heard the single shot fired, it was resolved by
       the jury against defendant. People v. Cunningham, 212 Ill. 2d 274, 284 (2004) (despite
       inconsistency and flaws, witnesses’ testimony as a whole was not unworthy of belief); People
       v. Gray, 2017 IL 120958, ¶ 47 (even contradictory testimony does not necessarily destroy the
       credibility of a witness, and it is the task of the trier of fact to determine when, if at all, a
       witness testified truthfully).
¶ 32       Defendant argues that the physical and forensic evidence presented at trial contradicted the
       officers’ testimony and raised reasonable doubt of his guilt. Specifically, defendant argues that
       (1) the surveillance video showed he did not have a gun, (2) he never fired his gun because the
       only bullet casings recovered from the scene matched Officer Iza’s gun and the number of
       casings recovered corresponded to the number of shots Officer Bala heard as he arrived on
       scene, and (3) the gunshot residue evidence contradicted the officers’ testimony that he fired
       his gun from his left hand.

                                                    -6-
¶ 33        Defendant’s first argument is, essentially, that the officers fabricated their testimony
       altogether. We reject this argument. The jury watched the surveillance video in open court and
       was in the best position to judge the credibility and accuracy of the officers’ testimony. We
       will not substitute our judgment for that of the jury. People v. Cooper, 194 Ill. 2d 419, 431
       (2000) (reviewing court will not substitute its judgment for that of the trier of fact on the
       credibility of witnesses).
¶ 34        Defendant’s next argument also raises questions that the jury decided against him:
       (1) whether there was a connection between the four bullet casings ejected from Officer Iza’s
       gun and Officer Bala’s testimony that he heard four shots fired upon arriving at the scene and
       (2) whether this connection gave rise to reasonable doubt that defendant fired a gun. We
       decline defendant’s invitation to draw a connection between the evidence that was reasonably
       not drawn by the jury after hearing the evidence presented and ascribe to that connection a
       reasonable doubt of defendant’s guilt. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007)
       (reviewing court will not retry defendant when considering a sufficiency of the evidence
       challenge).
¶ 35        Defendant finally argues that the gunshot residue evidence demonstrated that he fired a gun
       from his right hand, not his left hand as the officers had told the jury. Viewing the evidence in
       the light most favorable to the State, we find that the testimony of analyst Berk could have
       supported the jury’s verdict. The positive presence of gunshot residue on defendant’s right
       hand did not conclusively establish that defendant did not discharge a firearm from his left
       hand. Rather, the positive test allowed analyst Berk to arrive at three conclusions, one of which
       the jury could have determined was not inconsistent with the officers’ testimony: defendant
       “had his right hand in the environment of a discharged firearm.” Viewed in a light most
       favorable to the State, the jury could have found that defendant’s right hand was in the
       environment of the firearm that defendant discharged from his left hand. People v. Hinton, 402
       Ill. App. 3d 181, 183 (2010) (reviewing court resolves all reasonable inferences in favor of the
       State).
¶ 36        Defendant attempts to offer an explanation as to why his right hand tested positive for
       gunshot residue, namely, that the gunshot residue was transferred to his right hand when he
       discharged his gun in an attempt to rob his victim before encountering the officers. The
       gunshot residue issues presented in this case were extensively litigated, and the jury answered
       in the negative the question of whether defendant’s hypothesis of innocence raised reasonable
       doubt of his guilt. See Milka, 336 Ill. App. 3d at 228.
¶ 37        Defendant further argues that the combination of the officers’ testimony about the location
       of defendant’s hand when he fired the shot and positive presence of gunshot residue on his
       right hand raises reasonable doubt of his guilt. But any inconsistency, as to the location of
       defendant’s right hand when he fired his gun and, moreover, whether there was a connection
       between such an inconsistency and the gunshot residue evidence that raised reasonable doubt,
       was simply decided against defendant. Gray, 2017 IL 120958, ¶ 47 (contradictory testimony
       does not necessarily destroy the credibility of a witness, and it was the task of the jury to
       determine if the officers testified truthfully (citing Sparling v. Peabody Coal Co., 59 Ill. 2d
       491, 498-99 (1974)); Wheeler, 226 Ill. 2d at 114-15.
¶ 38        We disregard defendant’s argument that Officer Iza had a “significant incentive to lie”
       because he “had to justify the fact that he shot [defendant] from behind” in order to survive an
       Illinois Police Review Authority investigation and keep his job. Defendant advances this

                                                   -7-
       argument without citation to the record and has failed to show that even the most basic
       foundational requirements necessary to question Officer Iza about such an investigation were
       satisfied in the trial court.
¶ 39         The evidence was not so unreasonable, improbable, or unsatisfactory as to raise a
       reasonable doubt of defendant’s guilt. Gray, 2017 IL 120958, ¶ 35. Our review of the officers’
       eyewitness testimony does not compel the conclusion that the jury’s verdict was unreasonable.
       People v. Cunningham, 212 Ill. 2d 274, 280 (2004) (only where the record evidence compels
       the conclusion that no reasonable person could accept it beyond a reasonable doubt may
       testimony be found insufficient to convict). Accordingly, the evidence presented at
       defendant’s trial was sufficient to convict defendant of both counts of aggravated discharge of
       a firearm in the direction of a peace officer (720 ILCS 5/24-1.2(a)(3) (West 2008)).
¶ 40         We now turn to consider defendant’s argument that Officer Iza’s and technician Huels’s
       testimony regarding the bullet hole in the siding of the garage was irrelevant and prejudicial.
       We review the trial court’s decision for an abuse of discretion. People v. Morris, 2013 IL App
       (1st) 111251, ¶ 85 (the admissibility of evidence lies within the sound discretion of the trial
       court).
¶ 41         We hold that the trial court did not abuse its discretion when it allowed Officer Iza to testify
       about the bullet hole. Officer Iza’s testimony was relevant and admissible. Evidence is relevant
       if it has any tendency to make the existence of a fact that is of consequence to the determination
       of the action more or less probable than it would be without the evidence. People v. Pikes, 2013
       IL 115171, ¶ 21; Ill. R. Evid. 401 (eff. Jan. 1, 2011). Officer Iza testified that defendant fired
       one shot in a northerly direction and that he later observed a hole in the siding of a garage that
       was consistent with the trajectory of the bullet discharged from defendant’s gun. This evidence
       was relevant and probative of the direction of the bullet discharged from defendant’s gun.
¶ 42         Moreover, the testimony was admissible. It was (1) rationally based on Officer Iza’s
       perception; (2) helpful to a clear understanding of his testimony and the determination of
       whether defendant discharged a firearm in his direction or the direction of Officer Debose; and
       (3) not based on scientific, technical, or other specialized knowledge. Ill. R. Evid. 701 (eff. Jan.
       1, 2011); People v. Stokes, 95 Ill. App. 3d 62, 66 (1981) (police officer’s opinion as to the
       trajectory of gunshot and as to the point of origin of the gunfire clearly based upon observation
       of the scene of the crime and within the realm of perception of which the average man is
       capable). The trial court did not err in admitting this testimony into evidence.
¶ 43         The trial court also did not err when it allowed Officer Iza and technician Huels to testify
       that the hole in the garage appeared to have been created by a bullet. See People v. Ortiz, 96 Ill.
       App. 3d 497, 504 (1981) (although detective was not qualified as a ballistics expert, he was
       qualified to testify that certain holes in a wall, the ceiling, and a curtain appeared to be bullet
       holes). Defendant argues that Officer Iza and technician Huels should not have been allowed to
       testify that the bullet hole was “fresh” and free of “rust or debris” because “aluminum does not
       rust.” However, this argument is unavailing, as it was based on research absent from the record
       and not presented at his trial.
¶ 44         We hold that the trial court’s decision to admit the photograph of the bullet hole into
       evidence was not an abuse of discretion. The photograph was relevant in light of Officer Iza’s
       testimony and admissible given Officer Iza’s and technician Huels’s identification of the
       photograph as a fair and accurate representation of what they personally observed in the garage
       at the scene. People v. Martinez, 371 Ill. App. 3d 363, 380 (2007) (photographs are admissible

                                                     -8-
       if identified by a witness who has personal knowledge of the subject matter and testifies that
       the photograph is a fair and accurate representation of the subject matter at the relevant time).
¶ 45        We turn to consider defendant’s argument that the trial court’s failure to exclude the
       evidence was an abuse of discretion. “[A] trial court may exercise its discretion to exclude
       evidence, even when it is relevant[,] if its prejudicial effect substantially outweighs its
       probative value.” (Internal quotation marks omitted.) People v. Wilcox, 407 Ill. App. 3d 151,
       169 (2010); Ill. R. Evid. 403 (eff. Jan. 1, 2011). Here, the probative value of the evidence in
       demonstrating the direction of the bullet that Officer Iza saw defendant discharge from his gun
       substantially outweighed any danger of unfair prejudice. Accordingly, defendant’s argument
       fails.
¶ 46        Lastly, we note that Officer Iza had a basis for testifying that the bullet hole in the garage
       was consistent with the trajectory of the bullet discharged from defendant’s gun and that the
       bullet hole was created by a gun but he lacked the personal knowledge necessary to testify that
       the bullet hole was created by the bullet discharged from defendant’s gun. Martinez, 371 Ill.
       App. 3d at 380 (testimony must be based upon personal knowledge). However, the jury was
       free to accept or reject Officer Iza’s testimony as credible or incredible given his testimony on
       cross-examination that he “had no way of knowing” whether the hole was created by the bullet
       discharged from defendant’s gun. People v. Simpson, 2015 IL App (1st) 130303, ¶ 44
       (credibility of witnesses is within the province of the trier of fact). The jury was further
       informed of Officer Iza’s lack of knowledge when technician Huels admitted that he did not
       access the garage or recover the bullet.
¶ 47        Further, any error in the trial court’s allowing Officer Iza to testify that the bullet hole was
       created by the bullet fired from defendant’s gun was harmless in light of the other testimony of
       Officer Iza and Officer Debose that the jury found to be credible. There is no reasonable
       probability that the jury would have acquitted defendant if the testimony of Officer Iza as to
       how the bullet hole came to be had not been admitted into evidence and not presented to the
       jury. People v. Stull, 2014 IL App (4th) 120704, ¶ 104 (evidentiary error is harmless where
       there is no reasonable probability that the jury would have acquitted defendant absent the
       error).
¶ 48        Defendant argues that the trial court violated his constitutional right to cross-examine
       Officer Debose when it sustained the State’s objection to his question of whether the
       surveillance video depicted defendant running with his hands near his waistband. U.S. Const.,
       amend. VI; Ill. Const. 1970, art. I, § 8.
¶ 49        On direct examination, Officer Debose testified that defendant was running with his arms
       at his waistband “like he had something there.” He also discussed the events that unfolded on
       the surveillance video, from his perspective, as it was played for the jury. On
       cross-examination, defendant asked Officer Debose if the video showed defendant running
       with his hands near his waistband. The State objected, and the trial court sustained the
       objection because the video “speaks for itself.” Defendant challenges this ruling.
¶ 50        A criminal defendant’s constitutional right to confrontation includes the right to
       cross-examine. People v. Blue, 205 Ill. 2d 1, 12 (2001) (citing Douglas v. Alabama, 380 U.S.
       415, 418 (1965)). “ ‘The confrontation clause guarantees the opportunity for effective
       cross-examination, not cross-examination that is effective in whatever way, and whatever
       extent, the defense [may] wish.’ ” (Emphasis in original.) People v. Jones, 156 Ill 2d 225,
       243-44 (1993) (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985)). A trial court is

                                                     -9-
       afforded broad discretion to limit the scope of cross-examination, and its restriction of
       cross-examination will not be reversed absent an abuse of that discretion. People v. Palmer,
       2017 IL App (1st) 151253, ¶ 25.
¶ 51        Defendant concedes that he failed to raise his argument in a posttrial motion. However, he
       seeks review under the constitutional-issue exception, which allows a reviewing court to
       consider a constitutional issue that was (1) properly raised in the trial court and (2) may be later
       raised in a postconviction petition. See People v. Cregan, 2014 IL 113600, ¶ 16. The State
       accepts defendant’s concession and contends, separately, that we are unable to review his
       argument because he failed to make an offer of proof in the trial court. People v. Way, 2017 IL
       120023, ¶ 33 (an offer of proof enables a reviewing court to determine whether a trial court’s
       exclusion of evidence was improper). Defendant counters, arguing that he was not required to
       make an offer of proof (People v. Lynch, 104 Ill. 2d 194, 202 (1984) (formal offer of proof not
       necessary if question shows the purpose and materiality of the evidence, is in a proper form,
       and clearly admits of a favorable answer)) but argues, in the alternative, that he can establish
       plain error and requests that we review his arguments under that doctrine.
¶ 52        Defendant’s argument does not fall under the constitutional-issue exception because he did
       not properly raise a constitutional issue in the trial court. People v. Brown, 2017 IL App (1st)
       142877, ¶ 51. In fact, he failed to provide any reason why the trial court should have allowed
       him to question Officer Debose as to what the video depicted. People v. Burnett, 2015 IL App
       (1st) 133610, ¶ 79. Accordingly, defendant’s argument is forfeited.
¶ 53        As a separate matter, defendant’s failure to make an offer of proof in the trial court has
       precluded our review of his argument. People v. Baldwin, 2014 IL App (1st) 121725, ¶ 53 (the
       purpose of an offer of proof is to disclose to the trial court and opposing counsel the nature of
       the offered evidence and to enable a reviewing court to determine whether exclusion of the
       evidence was proper). The question directed to Officer Debose did not clearly admit a
       favorable answer because the video is unclear. We decline to venture a guess as to how Officer
       Debose would have answered defendant’s question and, thus, cannot determine whether trial
       court’s decision to exclude the testimony was proper.
¶ 54        But even if defendant had made an offer of proof in the trial court, he would not succeed on
       plain error review. Under the closely balanced prong of plain error review, the defendant must
       show prejudicial error. People v. Lewis, 2015 IL App (1st) 130171, ¶ 31. The defendant bears
       the burden of persuasion with respect to prejudice. Id. Defendant’s theory of the case was not
       that he never possessed a gun, or that the gun recovered at the scene was not his own, but,
       rather, that there was reasonable doubt he fired his gun at the officers. At oral argument,
       defendant even conceded that there was no question he had a gun. Defendant, therefore,
       suffered no prejudice as a result of the jury not having heard Officer Debose allegedly
       contradict himself about the location of defendant’s hands before defendant ran into the vacant
       lot, pulled his gun, and fired it at the officers. Accordingly, even if defendant’s argument was
       reviewable, it would fail plain error review.
¶ 55        Finally, defendant argues that the prosecutor’s closing arguments deprived him of a fair
       trial and focuses on the following comments: (1) the gunshot residue kit administered to
       defendant indicated that he was left-handed, (2) the presence of two unique gunshot particles
       on defendant’s left hand were consistent with having fired a gun from his left hand, and
       (3) Officer Iza and Officer Debose were brave.


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¶ 56        The parties agree that defendant properly preserved the prosecutor’s first comment for
       review by objecting in the trial court and raising the argument in his posttrial motion. People v.
       Willis, 409 Ill. App. 3d 804, 812 (2011) (preservation of error requires defendant to object at
       trial and raise error in a written posttrial motion). However, the State argues, and defendant
       openly admits, that he forfeited his challenges to the remaining comments made by the
       prosecutor by failing to object to them at trial. Id. Defendant therefore seeks plain error review.
       People v. Herron, 215 Ill. 2d 167, 178 (2005) (the plain error doctrine allows a reviewing court
       to reach a forfeited error affecting substantial rights).
¶ 57        We review the prosecutor’s first comment de novo and the remaining comments under the
       plain error doctrine. Wheeler, 226 Ill. 2d at 121 (whether statements made by a prosecutor at
       closing argument warrant a new trial is a legal issue this court reviews de novo); People v.
       Belknap, 2014 IL 117094, ¶ 48 (forfeited errors are reviewable under the plain error doctrine).
¶ 58        A prosecutor is given great latitude in making closing arguments and may comment on the
       evidence and all reasonable inferences stemming from the evidence. People v. Smith, 195 Ill.
       2d 179, 200 (2000). Closing arguments must be viewed in their entirety, and the allegedly
       erroneous argument must be viewed contextually. People v. Blue, 189 Ill. 2d 99, 128 (2000). A
       prosecutor’s comments in closing argument will result in reversible error only when they
       engender substantial prejudice against a defendant to the extent that it is impossible to
       determine whether the jury’s verdict was caused by the comments or the evidence. People v.
       Caffey, 205 Ill. 2d 52, 131 (2001).
¶ 59        Defendant first challenges the prosecutor’s comment made during the following exchange:
                    “MS. MULAY [(ASSISTANT STATE’S ATTORNEY)]: “Do you want to know
               another piece of circumstantial evidence? They tell you he shot with his left hand, the
               officer did. He shot with his left hand. And that gunshot residue kit, there is a question
               there of [defendant]. What hand are you? The answer. In that gunshot residue test his
               left hand”
                    MR. KOSTOUROS [(DEFENSE ATTORNEY)]: Objection [Y]our Honor, there is
               no evidence of this.
                    THE COURT: I agree, objection sustained.
                    MR. KOSTOUROS: I ask that be stricken [Y]our Honor.
                    THE COURT: Objection sustained. The jurors will disregard the comments.
               Sustained.”
¶ 60        The State concedes that there was “no testimony that defendant admitted to Officer
       Elizabeth Dawson (the evidence technician who administered the gunshot residue test to
       defendant) that [defendant] was left-handed.” Given the State’s concession, the parties direct
       their arguments to whether the trial court’s decision to instruct the jury to disregard the
       prosecutor’s comment cured the error. Unsurprisingly, the State argues that trial court cured
       the error, while defendant argues that the error was of such magnitude that it could not have
       been cured by an instruction to disregard the comment.
¶ 61        But the parties’ arguments, and the State’s concession, highlight their failure to recognize
       an important point: the gunshot residue test kit was in evidence when the prosecutor made her
       comment. The State and defendant stipulated, in writing, to the admission of the gunshot
       residue test kit into evidence: “People’s Exhibit No. 5.” The parties’ stipulation included the



                                                   - 11 -
       following statement: “Prior to administering the test, Officer Dawson asked [defendant]
       certain background and biographical information that she recorded on the test packet.”
¶ 62       Whether the gunshot residue test kit contained the question of defendant’s handedness and
       his answer that he was left-handed is unknown because defendant did not include “People’s
       Exhibit No. 5” in the record. People v. Carter, 2015 IL 117709, ¶ 19 (defendant has the burden
       to present a sufficiently complete record to support claim of error). Without the information
       contained in “People’s Exhibit No. 5,” we are unable to determine whether the prosecutor
       properly or improperly commented on the evidence. Accordingly, there is no basis for holding
       in defendant’s favor, and his argument must fail.
¶ 63       Defendant argues that the prosecutor materially misstated, or overstated, the scientific
       evidence presented by analyst Berk in her closing argument. The State, counters arguing that
       the prosecutor’s comments were based upon the evidence and reasonable inferences drawn
       from the evidence. Under plain error review, we are first required to determine whether any
       error occurred. People v. Lewis, 234 Ill. 2d 32, 43 (2009).
¶ 64       We initially note that, as part of his argument, defendant references Federal Bureau of
       Investigation studies that are absent from the record. People v. Morgan, 2015 IL App (1st)
       131938, ¶ 97 (purpose of appellate review is to evaluate the record presented in the trial court,
       and review must be confined to what appears in the record). Moreover, defendant did not
       present or make an argument based on these studies to the jury. People v. Bowens, 407 Ill. App.
       3d 1094, 1110 (2011) (to preserve a claim for review, a defendant must both object at trial and
       include the alleged error in a written posttrial motion). Defendant’s argument is forfeited.
¶ 65       Defendant challenges the prosecutor’s reference to the “presence of residue on both hands”
       and her comment that the “unique particles on the left hand” were “corroborative” of Officer
       Iza’s and Officer Debose’s testimony. We find that the prosecutor’s reference and comment
       were reasonable inferences drawn from the evidence. People v. Austin, 2017 IL App (1st)
       142737, ¶ 54 (prosecutor may comment on reasonable inferences that the evidence yields).
       Analyst Berk testified that the positive presence of gunshot residue allowed him to conclude
       that defendant’s right hand may have been in the environment of a firearm that was discharged.
       Officer Debose testified that he saw defendant’s right hand covering his left wrist after he
       heard defendant discharge his firearm, not to mention that analyst Berk testified that the paper
       bags placed on the defendant’s hands after the shooting could “take the residue away” and that
       “if you put your hands in your pockets, if you wash your hands, if you simply come into
       contact with different surfaces you’ll lose the residue to those surfaces.” In light of this
       testimony, the prosecutor’s comments were not improper.
¶ 66       Next, defendant challenges the prosecutor’s comment that the presence of two unique
       gunshot residue particles on defendant’s left hand was “hardly a negative.” We find no
       impropriety here. The comment was a reasonable inference from the evidence that was made
       immediately after the prosecutor’s restatement of the results of analyst Berk’s analysis as he
       presented it to the jury. People v. Temple, 2014 IL App (1st) 111653, ¶ 81 (comment was not
       improper where prosecutor stated evidence exactly as it was presented to the jury and drew a
       reasonable inference from the evidence). Similarly not improper was the prosecutor’s
       comment that she believed that the results of analyst Berk’s analysis were “consistent” with
       defendant having discharged a firearm. The prosecutor restated the evidence as it was
       presented to the jury before drawing this conclusion. Id.


                                                  - 12 -
¶ 67        The prosecutor’s comment, that the presence of two unique gunshot residue particles on
       defendant’s left hand was “certainly[,] I submit to you[,] consistent with having fired a gun
       from his left hand,” was not improper. It is clear from the record that analyst Berk drew no
       conclusions from the presence of two unique gunshot residue particles on defendant’s left hand
       and was careful in confining his testimony to his positive finding: “All I can say is the right
       hand testified positive and that indicates to me the 3 possibilities of why it’s positive.”
       However, when analyst Berk explained to the jury what is required to find a positive presence
       of gunshot residue, generally, he made the following statements:
                     “MR. BERK [(TRACE EVIDENCE ANALYST)]: In order for me to find positive
                 presence [sic] of gunshot residue, I need to find 3 of those unique particles. I also
                 expect to find consistent particles and when in fact I do find at least those two unique
                 particles I’m able to say that we have a positive test result and that indicates to me the
                 individual typically has either discharged a firearm, has contacted an item that had
                 primer gunshot residue on it or his hands were in the environment of a discharged
                 firearm.” (Emphasis added.)
¶ 68        In light of this testimony, the prosecutor’s comment was not an improper overstatement or
       misstatement of the evidence. See People v. Crawford, 2013 IL App (1st) 100310, ¶ 144
       (restatement of what expert witness stated not improper comment). Having found no error, our
       analysis under the plain error doctrine stops, and defendant’s argument fails. People v.
       Calhoun, 404 Ill. App. 3d 362, 382 (2010) (where there is no error, there can be no plain error).
¶ 69        Finally, defendant argues that the prosecutor’s comment that Officer Iza and Officer
       Debose were “brave” served to inflame the passion of the jury and improperly bolstered their
       credibility. As defendant admits, he did not preserve this argument for review. We therefore
       review his argument for plain error and first determine whether an error occurred. Lewis, 234
       Ill. 2d at 43.
¶ 70        We find no error in the prosecutor’s statement to the jury that the officers were brave. First,
       defendant’s argument that the prosecutor vouched for the officers’ credibility has no basis.
       Defendant cites People v. Williams, 2015 IL App (1st) 122745, in support of his argument, but
       in Williams, the prosecutor sent the message to the jury that “the State’s Attorney would not
       put an untruthful witness on the stand.” Id. ¶ 17. A prosecutor’s comment that a police officer
       is brave sends no such message to the jury.
¶ 71        This is not the first time a prosecutor has characterized police officers or their actions as
       brave. See People v. Walker, 259 Ill. App. 3d 98, 105 (1993) (finding no error where
       prosecutor commented during closing argument that “ ‘we look at police officers as being big
       and strong and brave and somehow magical’ ” and “ ‘[w]e learn from our families to trust them
       and respect them’ ”). The prosecutor’s comment was not improper. Having found no error,
       defendant’s argument fails. Calhoun, 404 Ill. App. 3d at 382.

¶ 72                                          CONCLUSION
¶ 73      Accordingly, we affirm.

¶ 74      Affirmed.




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