                       Illinois Official Reports

                              Appellate Court



                  People v. Mueller, 2015 IL App (5th) 130013



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



District & No.    Fifth District
                  Docket No. 5-13-0013



Filed             July 17, 2015



Decision Under    Appeal from the Circuit Court of Jackson County, No. 11-CF-636; the
Review            Hon. William G. Schwartz, Judge, presiding.



Judgment          Reversed; cause remanded.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Christopher Kopacz, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Michael Carr, State’s Attorney, of Murphysboro (Patrick Delfino,
                  Stephen E. Norris, and Sharon Shanahan, all of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE MOORE delivered the judgment of the court, with opinion.
                  Justices Goldenhersh and Stewart concurred in the judgment and
                  opinion.
                                                 OPINION

¶1       The defendant, Joshua Mueller, appeals his conviction for retail theft and the
     extended-term four-year sentence in the Illinois Department of Corrections that followed the
     conviction. For the following reasons, we reverse and remand for a new trial.

¶2                                                FACTS
¶3       The facts necessary to our disposition of this appeal are taken from the transcript of the
     defendant’s jury trial, which took place on October 31, 2012, and are as follows. During
     voir dire, the trial court judge questioned the potential jurors individually. With regard to the
     four principles of law set forth in Illinois Supreme Court Rule 431(b) (eff. July 1, 2012),
     commonly known among practicing criminal law attorneys as the “Zehr principles,” 1 his
     questions varied from potential juror to potential juror. The judge asked many of the potential
     jurors if they understood that the defendant was presumed innocent, but not if they accepted
     this principle. The judge asked all of the potential jurors if they would “require” the State to
     prove the defendant guilty beyond a reasonable doubt, but he did not ask all of them if they
     understood what the principle means. He also asked all of the potential jurors if they
     understood that the defendant did not have to present any evidence or testify, and that if the
     defendant did not testify they could not hold it against him, but none of the potential jurors
     were asked if they accepted these last two principles. Counsel for the defendant did not object
     to the content of the trial judge’s voir dire questioning.
¶4       In her opening statement, counsel for the State described the offense the defendant was
     alleged to have committed, which was the theft of two men’s winter coats, and told the jury
     that it would “be able to see the video surveillance that took place that day,” and that it would
     “be able to watch the defendant pick up merchandise from the store and exit the doors without
     paying for the coats.” The State also told the jury that it would hear Officer Tim Lomax of the
     Carbondale police department testify “that he too watched that video surveillance and
     recognized that individual taking the coats as the defendant.”
¶5       The first witness to testify for the State was Dana Womick. She testified that at the time of
     the trial, she worked part-time at the Macy’s store in the University Mall in Carbondale as a
     sales associate, but that approximately 11 months earlier, on November 26, 2011, she had been
     working at the store as a loss prevention officer. Her duties on that date were to “watch for
     shoplifters or watch our employees for thefts.” She testified with regard to the closed-circuit
     surveillance system at the Macy’s store, stating that she had both training and experience in its
     use.
¶6       Womick also testified about the manner in which she and her fellow loss prevention
     officers conducted investigations. She stated that they would “watch our customers for anyone
     who gives signs,” and that sometimes they would monitor the closed-circuit system from the
     “camera room” and other times would do “walk-abouts” on the sales floor and follow


         1
           See People v. Zehr, 103 Ill. 2d 472, 477 (1984). The principles are that a defendant: (1) is
     presumed innocent of the charge(s) against him or her; (2) is not required to offer any evidence on his or
     her own behalf; (3) must be proved guilty beyond a reasonable doubt; and (4) may not have his or her
     failure to testify held against him or her.

                                                     -2-
       customers of whom they were suspicious. The officers would typically communicate by cell
       phone, but a store phone was also available for communications.
¶7          Womick testified that on November 26, 2011, at approximately 5 p.m., she observed a
       male and a female in the “very back end of the home store.” She considered the couple
       suspicious because they had what Womick characterized as “several totes *** just random
       totes, empty-looking totes.” Womick was watching the couple through the closed-circuit
       system and called a fellow loss prevention officer, who was on the sales floor, to come observe
       them through the system in the camera room with her. The suspicious couple separated, with
       the female going to a fitting room with some clothing and some of the totes and the male
       staying in the women’s clothing area “walking up and down the aisle.”
¶8          Counsel for the State then asked Womick if she was “physically observing the male at this
       point,” and Womick reiterated that she was still watching the male through the closed-circuit
       camera system. Counsel next asked, “Do you see the male that you were observing at this time
       in the courtroom today?” Womick answered that she did and identified the defendant as the
       male she had observed. She then testified that the female subsequently left the store without the
       items of clothing she had been carrying. Womick testified that the male remained in the store
       and that “it appeared he was looking for his wife.” The male then left the store “using the
       entrance to the mall” and reentered “[s]everal–probably three times.” Womick testified that
       she believed the male “was in our store three times.” She also testified that she and her
       coworker believed the male would reenter the store because they “felt like he was looking for
       his–whoever he was with.” By the time he reentered for the first time, Womick had moved
       from the camera room to the sales floor, while her coworker remained in the camera room. The
       male left again. When he reentered for what Womick characterized as the “third time,”2 she
       was not aware that he was back in the store until her coworker called her.
¶9          Womick was then asked if she subsequently learned the male “was about to leave the
       store,” and she testified that she “was walking into the men’s department and [her] co-worker
       was on the telephone with [her] saying that he was in the men’s department.” She testified that
       she was “coming to find” the male, that it was now approximately “5:45, 5:50” p.m., and that
       she watched the male exit the store, “carrying two jackets,” through “the west entrance exit
       into the parking lot.” She stated that she “was very close behind him as he went out the door.”
       She followed him, but when he noticed her, he began to run. Womick testified that she yelled
       for the male to stop, but that she, and a loss prevention officer from JC Penney with whom she
       had been in contact and who was now outside as well, could not catch the male before he
       disappeared from view. Along the way, the male discarded the coats he was carrying, “along
       with one of the fairly empty tote bags of his own.” Womick was shown a photograph of two
       winter coats and identified them as the coats she had observed the male “drop outside of the
       store.” No photographs were shown of, and no additional testimony was adduced with regard
       to, the tote bag that allegedly belonged to the defendant and was allegedly left behind as well,
       and the loss prevention officer from JC Penney was not called as a witness at the trial.
¶ 10        Counsel for the State then asked Womick more details about the closed-circuit surveillance
       system. Womick testified that the cameras were “very good” and could be zoomed in so

           2
            We acknowledge the inconsistency between Womick’s testimony that she believed the male “was
       in our store three times” and her testimony that he “re-entered” the store three times, the latter of which
       would of course mean that he was in the store a total of four times.

                                                       -3-
       closely that she could “read what is being rang [sic] up on the cash register” and could “see the
       color of a person’s eyes.” She testified that she was trained “to get a good facial shot” of
       suspicious persons, and that on the date in question, she was able to zoom “right into [the
       male’s] face.” She testified that the cameras recorded directly to a hard drive, and that if she
       wanted to retrieve footage that had been recorded, she could find the footage she wanted and
       record it “onto a disk.” She testified that with regard to the date in question, she “copied the
       section where [the male] entered the men’s department and picked up the two coats and exited
       the door.” She testified that she did not make any additions to the footage or change it in any
       way. She testified that the disk she made fairly and accurately depicted the video footage she
       viewed before making the disk–in fact, she testified that it was “exactly the same” as the
       footage she viewed before making the disk–and she then authenticated a videodisk presented
       to her by the State as the disk she made.
¶ 11        The videodisk presented by the State was admitted into evidence without objection and
       was played for the jury. It is part of the record on appeal and has been viewed by this court. The
       videodisk contains approximately 38 seconds of footage, all of which is somewhat grainy. The
       first 11 seconds of footage show, from a distance, an individual who appears to be a man
       looking around at items of clothing in the men’s department. At approximately the 11-second
       mark, two other shoppers pass closely by the individual, who steps away from a merchandise
       table. After they have passed, the individual then picks up at least one item of clothing from the
       table and exits the store through a nearby door, disappearing from the footage at approximately
       the 27-second mark. Approximately three seconds later, a female enters the footage from the
       far right and makes her way across the screen, at a brisk walk, to the door used by the
       individual. The female disappears from the footage at approximately the 35-second mark.
       Nothing of significance is seen in the final three seconds of footage. After the videodisk was
       played for the jury, Womick testified that she was the female seen near the end of the footage.
       She was not asked–and she did not testify as to–why, if she was trained “to get a good facial
       shot” of suspicious persons and if on the date in question she was able to zoom “right into [the
       male’s] face,” no such footage of the male, either before or during the alleged theft, was
       presented to the jury.
¶ 12        On cross-examination, however, Womick was asked if the footage that was shown to the
       jury was “on zoom.” She testified that it was “somewhat zoomed in” and “[p]artially zoomed
       in.” She testified that she was “probably 20 feet” from the male when he exited the store,
       although she acknowledged that her answer “would be a guess.” She testified that although she
       spoke that night with a Carbondale police officer, she had no further contact with the police
       and was not informed when an individual was subsequently arrested in the case. She was never
       asked to identify a suspect in a police line-up, or from a photograph, and although she testified
       that she saw the defendant “in Macy’s” on November 26, 2011, she stated that she had never
       seen him before that date or since that date, until the date of trial.
¶ 13        On redirect examination, Womick testified that at one point in her investigation she was
       within “six feet, maybe six to ten feet” of the male suspect, and that although the male “had left
       the store on occasions,” she believed that “between the cameras and being on the floor
       following him,” she had spent “probably at least a half an hour” observing the male.
¶ 14        The next witness to testify for the State was Officer Tim Lomax of the Carbondale police
       department. He testified that on November 26, 2011, he responded, while on duty, to a call at
       Macy’s regarding a retail theft, and that once he arrived at the store he spoke with Jessica

                                                   -4-
       Freeman 3 in the loss prevention office. He testified that he was familiar with the zoom
       function of the store’s cameras, and when asked if he had watched any footage that night
       “when it had been zoomed,” he testified, “I believe so, yes.” He was then asked if he
       recognized the videodisk that previously had been shown to the jury. Officer Lomax testified
       that he did, that he had viewed what was contained on the disk, and that what was contained on
       the disk fairly and accurately depicted what he had “watched on the video surveillance that
       day.”
¶ 15       Counsel for the State then asked if, when he “watched the video,” he saw an individual he
       could identify. He answered, “I did.” Counsel for the State immediately thereafter asked, “And
       when you watched the footage on this video, did you identify the same individual?” Officer
       Lomax testified, “I don’t recall about the disk, no.” He was then asked whom he identified
       when he “viewed the video footage.” Counsel for the defendant immediately objected, stating,
       “The video footage that we are dealing with is the one being admitted into evidence [on the
       disk]. Any other video footage he is testifying to would be hearsay.” The objection was
       sustained and counsel for the State did not again ask Officer Lomax about the identity of the
       individual allegedly involved in the theft, nor did she ask any other questions about how the
       defendant was identified as a suspect in this case, or when or how the defendant was
       subsequently arrested.
¶ 16       Counsel for the defendant declined to cross-examine Officer Lomax. The State then rested,
       and counsel for the defendant moved for a directed verdict, which was denied. The defendant
       exercised his right not to introduce any evidence on his own behalf, and, in conjunction with
       the exercise of that right, stated for the record, outside the presence of the jury, that it was his
       “desire not to testify.” Following a final conference on jury instructions, the parties offered
       their closing statements. Counsel for the State argued that “[t]he evidence you heard and saw
       today shows that the defendant *** committed the offense of retail theft,” and that “[w]e see
       from the video the defendant taking possession of the merchandise.”
¶ 17       In her closing statement, counsel for the defendant argued that Womick was not a credible
       witness, pointing out that although Womick still works for Macy’s, she is no longer in loss
       prevention. Counsel suggested that the reason Womick is no longer in loss prevention is that
       although Womick testified that she was “very close behind” the male when he exited Macy’s,
       the video showed that Womick was “so far behind that the door gets to close before she even
       gets there,” and that “[a]ny loss prevention person would be there before that door closes.” She
       questioned the reliability of Womick’s identification of the defendant as the male in Macy’s
       that day, noting that the defendant has no distinguishing features such as tattoos and that no
       other distinguishing features were identified by Womick or any other witness. Counsel implied
       that Womick’s continued employment with Macy’s, albeit in a different capacity, provided her
       with an interest in the outcome of the case and with a motive to testify falsely, stating in
       support thereof, “It would be embarrassing for her to sit up there and say, ‘I still work for
       Macy’s, I am not sure that’s the guy or not.’ ” Counsel pointed out that the State could have
       presented other witnesses in addition to Womick, but did not. With regard to Womick and the
       video, counsel argued, “There is no way she positively identified my client being that person


          3
             We note that Womick identified her coworker as “Jasmine Freeman.” We do not know the actual
       first name of the coworker and do not consider it relevant to our disposition of this appeal.

                                                    -5-
       on the video. You have seen the video. Is that even a man? There’s a strap. Is the person
       carrying a purse?”
¶ 18        In rebuttal, counsel for the State argued that Womick had also testified that she had
       followed the male “around the store” and had zoomed in on his face while watching him in the
       camera room. As she concluded her rebuttal, counsel stated, “I submit to you to watch the
       video. We watched the video and you can–you are free to use your common sense. Does that
       look like the defendant? The witness is–the video is a silent witness. It has no prejudices, no
       interests, no biases. It is what it is. From the video you saw the defendant pick up the coats and
       exit the store.”
¶ 19        The jury was instructed on the applicable law and at 3:15 p.m. retired to deliberate. At
       some point thereafter–the exact time of which is not included in the record–the jury sent to the
       trial judge a note that stated: “Can we please see the video? We feel that it was too far away.”
       The judge stated that his intention was “to replay the video for the jurors with the screen pulled
       closer to the jury box.” Neither party objected, and counsel for the defendant noted for the
       record, “[M]y approximation is the TV is now ten feet closer to the jury,” to which the trial
       judge responded, “Oh, at least.”
¶ 20        As the judge prepared to again play the videodisk for the jury, juror H. asked if there was
       “any way you can extend that to the full screen so it is expanded a little more?” The judge’s
       one-word answer was “nope.” He played the videodisk for the jury, and then, without
       prompting from the jury or from either party, asked, “Is that good or do you want me to play it
       one more time?” Juror B. stated the following: “Could you play that one more time? Could you
       pause one part particularly? Freeze frame?” Juror A. then asked, “Could you freeze it? Can you
       freeze it?” Despite having just asked the jurors, sua sponte, if they wished for him to play the
       videodisk one more time, and despite juror B. asking, inter alia, if the judge could play it one
       more time, the judge’s response–apparently to all of the questions just asked of him–was again
       the single word “nope,” to which juror A. responded, “Aw, man.” The jury returned to the jury
       room to deliberate and at 4:20 p.m. returned with a verdict finding the defendant guilty of retail
       theft. The defendant was subsequently sentenced to an extended-term four-year sentence in the
       Illinois Department of Corrections, and this timely appeal followed.

¶ 21                                            ANALYSIS
¶ 22       On appeal, the defendant contends that: (1) the trial judge committed reversible error
       because he did not comply with the voir dire requirements of Illinois Supreme Court Rule
       431(b) (eff. July 1, 2012), and (2) the trial judge committed reversible error because he failed
       to exercise his discretion when he “flatly rejected the requests from multiple jurors to freeze or
       enlarge the brief, grainy video footage.” The defendant concedes that he did not raise these
       issues at trial, or in a posttrial motion, but argues that the evidence in this case was closely
       balanced, and that therefore the alleged errors are subject to plain-error review.
¶ 23       We begin by addressing the defendant’s first contention. When a defendant requests
       plain-error review of an alleged error, the reviewing court’s first step “is determining whether
       any error occurred.” People v. Thompson, 238 Ill. 2d 598, 613 (2010). In this case, the State
       concedes that error occurred, because the trial judge failed to comply with the voir dire
       requirements of Rule 431(b) when he failed to ask the potential jurors if they understood and
       accepted the four Zehr principles. We accept the State’s concession. At the time of the
       defendant’s trial, Rule 431(b) provided that the trial judge “shall ask each potential juror,

                                                   -6-
       individually or in a group, whether that juror understands and accepts” the four Zehr
       principles. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). As explained above, during voir dire the trial
       judge asked many of the potential jurors if they understood that the defendant was presumed
       innocent, but not if they accepted this principle. The judge asked all of the potential jurors if
       they would “require” the State to prove the defendant guilty beyond a reasonable doubt, which
       as the State points out could be construed to mean that he asked them if they accepted this
       principle, but he did not ask all of them if they understood what this principle means. He also
       asked all of the potential jurors if they understood that the defendant did not have to present
       any evidence or testify, and that if the defendant did not testify they could not hold it against
       him, but none of the potential jurors were asked if they accepted these last two principles. As
       the Supreme Court of Illinois recently reiterated, “the language of Rule 431(b) is clear and
       unambiguous; the rule states that the trial court ‘shall ask’ whether jurors understand and
       accept the four principles set forth in the rule. The failure to do so constitutes error.” People v.
       Belknap, 2014 IL 117094, ¶ 45.
¶ 24       Having established that the trial judge erred when he failed to comply with the voir dire
       requirements of Rule 431(b), we must next determine whether, pursuant to the application of
       the plain-error doctrine, the errors necessitate reversal and remand for a new trial. As noted
       above, the defendant concedes that he did not raise the issue of the trial judge’s Rule 431(b)
       errors at trial or in a posttrial motion, and that therefore this issue is procedurally forfeited. See,
       e.g., People v. Naylor, 229 Ill. 2d 584, 592 (2008) (to properly preserve alleged trial error,
       defendant must: (1) object at trial, and (2) include claim of error in written posttrial motion).
       The defendant nevertheless contends the errors are subject to plain-error review. “The
       plain-error doctrine allows errors not previously challenged to be considered on appeal if
       either: (1) the evidence is so closely balanced that the error alone threatened to tip the scales of
       justice against the defendant; or (2) the error was so fundamental and of such magnitude that it
       affected the fairness of the trial and challenged the integrity of the judicial process, regardless
       of the closeness of the evidence.” People v. Wilmington, 2013 IL 112938, ¶ 31. In this case, the
       defendant does not allege that the errors are reviewable under the second prong listed above;
       rather, he contends only that the errors are reviewable under the first prong, i.e., because the
       evidence in this case was closely balanced.
¶ 25       When reviewing a claim of error under the first prong of the plain-error doctrine, “a
       reviewing court must undertake a commonsense analysis of all the evidence in context” to
       determine if the evidence is closely balanced. People v. Belknap, 2014 IL 117094, ¶ 50. That
       assessment must be “a qualitative, as opposed to a strictly quantitative,” one (id. ¶ 53) and must
       take into account “the totality of the circumstances.” Id. ¶ 62. Moreover, as quoted above, the
       evidence must not only be closely balanced, but must be “so closely balanced that the error
       alone threatened to tip the scales of justice against the defendant.” People v. Wilmington, 2013
       IL 112938, ¶ 31. Under either prong of the plain-error doctrine, it is the defendant who bears
       the burden of persuasion. Id. ¶ 43.
¶ 26       The State’s evidence in this case is described in detail above. On appeal, the State contends
       this evidence was not closely balanced, and therefore plain-error review of the claims of error
       put forward by the defendant is not available. Specifically, the State posits that the evidence
       adduced against the defendant at trial was “overwhelming,” noting that Womick testified that
       she was trained to watch for shoplifters, that she observed the defendant both by camera and in
       person for about half an hour, that she was able to zoom her camera to clearly see the


                                                      -7-
       defendant’s face, and that she got within “a few feet” of the defendant while observing him in
       person. The State also contends that Womick “unequivocally stated that the person she saw
       take the garments and leave the store was [the] defendant,” and, perhaps in an attempt to
       minimize the problematic video footage, the State makes the rather dubious claim that “neither
       the State nor the defense counsel focused on the video clip in closing argument.” The State also
       claims that “Officer Lomax viewed the in-store camera feed, testified he knew the perpetrator,
       and [the] defendant was then arrested for the crime.”
¶ 27       There are a number of problems with the State’s arguments, and we are far from convinced
       that the evidence against the defendant was “overwhelming.” To the contrary, our
       commonsense, qualitative analysis of the State’s evidence, viewed within the totality of the
       circumstances, leads us to conclude that the defendant has met his burden of persuading us that
       the evidence in this case was so closely balanced that the trial judge’s Rule 431(b) errors alone
       threatened to tip the scales of justice against the defendant.
¶ 28       It is true that Womick testified that she was trained to watch for shoplifters and in the use of
       the store’s closed-circuit surveillance system. In fact, with regard to the latter, she testified that
       the surveillance cameras were “very good” and could be zoomed in so closely that she could
       “read what is being rang [sic] up on the cash register” and could “see the color of a person’s
       eyes.” She also testified that she was trained “to get a good facial shot” of suspicious persons,
       and that on the date in question, she was able to zoom “right into [the male’s] face.”
       Nevertheless, the jury was presented with video footage that Womick herself characterized as
       “somewhat zoomed in” and “[p]artially zoomed in,” and that, to put it mildly, would not allow
       a viewer to see the color of anyone’s eyes.
¶ 29       Perhaps a technical explanation exists for the disparity between the zooming capabilities
       Womick claimed the cameras possessed and the footage actually captured from those cameras
       and presented to the jury. However, although Womick testified in detail about the process of
       making a videodisk from footage captured by the cameras, she never addressed any such
       technical explanation for the disparity in quality, and, as we noted above, she was not
       asked–and she did not testify as to–why, if she was trained “to get a good facial shot” of
       suspicious persons and if on the date in question she was able to zoom “right into [the male’s]
       face,” no such footage of the male, either before or during4 the alleged theft, was presented to
       the jury. On this basis alone, the jury could have begun to doubt the accuracy of Womick’s
       testimony and her credibility as a witness.
¶ 30       The problems with Womick’s testimony do not end here, however. Although Womick
       testified that she was “probably 20 feet” from the male when he exited the store, she also
       characterized herself as “very close behind him as he went out the door.” The images presented
       on the videodisk do not support either piece of testimony, which also could have led the jury to
       doubt Womick’s credibility. Indeed, perhaps the only thing that is clear from the videodisk is
       that, as explained above, approximately three seconds after the male disappears from the

           4
             Obviously, Womick was on the sales floor at the time the suspicious male exited the store with the
       merchandise and could not control the amount of zooming done by her coworker at that time. However,
       she specifically testified that she was able to zoom “right into [the male’s] face” while observing him
       before any alleged wrongdoing occurred, and presumably absent some kind of technical limitation in
       the recording capacity of the equipment, that zoomed footage of the male could have been presented to
       the jury as well.

                                                      -8-
       footage through the exit door, a female–later identified by Womick as herself–enters the
       footage from the far right and, over the next approximately five seconds, makes her way across
       the screen, at a brisk walk, to and out the exit door. Accordingly, although Womick testified
       that she was within “six feet, maybe six to ten feet” of the suspicious male at one point in her
       investigation, the jury at this point had reason to doubt Womick’s ability to accurately gauge
       and testify to distances, and no other context was presented regarding her “maybe six to ten
       feet” statement. Indeed, with regard to following the male, the defendant is correct when he
       notes that Womick never testified that while on the sales floor–as opposed to while viewing the
       floor via the surveillance system–she had a clear, unobstructed view of the male, and never
       testified with specificity as to where in the store the two were located when she was allegedly
       so close to the male. Moreover, although she testified that “between the cameras and being on
       the floor following him,” she had spent “probably at least a half an hour” observing the male
       between the occasions when he left the store, she never testified explicitly as to how much time
       was spent in each capacity, and her testimony that she was “coming to find” the male in the
       men’s department just before he exited the store for the final time does not comport with the
       idea that she was observing him closely and/or from a fixed position on the floor for very long
       at all.
¶ 31       In addition, although not determinative of the result we reach today with regard to the
       closeness of the evidence, we must add that we cannot agree with the State’s assertion that
       Womick “unequivocally stated that the person she saw take the garments and leave the store
       was [the] defendant.” Had she been asked different or additional questions, perhaps Womick
       would have made such an unequivocal identification of the defendant as the person who took
       the coats and left the store, although this of course would not negate the other problems with
       Womick’s testimony, discussed above. However, as explained above, the only actual
       identification of the defendant by Womick at trial occurred on direct examination, and related
       not to anyone leaving the store with merchandise, but to Womick observing what she deemed
       to be a suspicious male “walking up and down the aisle” while waiting for his female
       companion to return from a fitting room. Counsel for the State specifically asked Womick if
       she was “physically observing the male at this point,” and Womick reiterated that she was still
       watching the male through the closed-circuit camera system. Counsel next asked, “Do you see
       the male that you were observing at this time in the courtroom today?” Womick answered that
       she did and identified the defendant as the male she had observed. At no point did Womick
       identify the defendant as the male she had followed in person, nor did she ever state that the
       male she observed via video was the same male she observed in person, although counsel for
       the State repeatedly referred to the male she had followed in person as the defendant, and
       Womick did answer “yes, he was carrying two jackets” when counsel for the State asked,
       “When you observed the defendant exiting the store, was he carrying anything?” In light of the
       foregoing, we cannot agree with the State’s contention that Womick “unequivocally stated that
       the person she saw take the garments and leave the store was [the] defendant.” She was never
       asked to make such a statement, and she did not.
¶ 32       The defendant is also correct in asserting that he was not arrested at the scene, and that
       when he was subsequently arrested, he was not in possession of any proceeds of the theft.
       Womick conceded that she had never seen the defendant prior to the date she allegedly saw
       him in Macy’s, November 26, 2011, and stated that until the date of the trial, nearly one year
       later, she had not seen him since. She testified that she was never asked by police to identify a


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       suspect in a police line-up or from a photograph. As we noted above, no photographs were
       shown of, and no additional testimony was adduced with regard to, the tote bag that allegedly
       belonged to the defendant and was allegedly left behind as well, and neither the loss prevention
       officer from JC Penney nor Womick’s loss prevention coworker was called as a witness at the
       trial.
¶ 33        We must also take issue with the State’s claim that “Officer Lomax viewed the in-store
       camera feed, testified he knew the perpetrator, and [the] defendant was then arrested for the
       crime,” for it is not an accurate characterization of what happened at trial. In her opening
       statement, counsel for the State told the jury that it would hear Officer Lomax testify “that he
       too watched that video surveillance and recognized that individual taking the coats as the
       defendant.” In fact, as described above, Officer Lomax was asked if, when he “watched the
       video,” he saw an individual he could identify. He answered, “I did.” Counsel for the State
       immediately thereafter asked, “And when you watched the footage on this video, did you
       identify the same individual?” Officer Lomax then testified, “I don’t recall about the disk, no.”
       He was then asked whom he identified when he “viewed the video footage.” Counsel for the
       defendant immediately objected, stating, “The video footage that we are dealing with is the one
       being admitted into evidence [on the disk]. Any other video footage he is testifying to would be
       hearsay.” The objection was sustained and counsel for the State did not again ask Officer
       Lomax about the identity of the individual allegedly involved in the theft, nor did she ask any
       other questions about how the defendant was identified as a suspect in this case, or when or
       how the defendant was subsequently arrested. In light of Officer Lomax’s testimony on direct
       examination, counsel for the defendant astutely declined to cross-examine him. We do not
       believe the testimony of Officer Lomax does anything to make the evidence less closely
       balanced in this case, particularly when one considers that the jury was told by the State in its
       opening statement that the officer would identify the defendant, but in fact he made no such
       identification.
¶ 34        Overall, the quality of Womick’s testimony was weak. It is therefore not surprising that in
       closing argument, counsel for the defendant attacked Womick’s credibility, pointing out that
       although Womick still works for Macy’s, she is no longer in loss prevention. Counsel
       suggested that the reason Womick is no longer in loss prevention is that she was not very good
       at it and in support of this suggestion pointed out that although Womick testified that she was
       “very close behind” the male when he exited Macy’s, the video showed that Womick was “so
       far behind that the door gets to close before she even gets there,” and that “[a]ny loss
       prevention person would be there before that door closes.” She questioned the reliability of
       Womick’s identification of the defendant as the male in Macy’s that day, noting that the
       defendant has no distinguishing features such as tattoos and that no other distinguishing
       features were identified by Womick or any other witness. Counsel implied that Womick’s
       continued employment with Macy’s, albeit in a different capacity, provided her with an
       interest in the outcome of the case and with a motive to testify falsely, stating in support
       thereof, “It would be embarrassing for her to sit up there and say, ‘I still work for Macy’s, I am
       not sure that’s the guy or not.’” Counsel pointed out that the State could have presented other
       witnesses in addition to Womick, but did not. With regard to Womick and the video, counsel
       argued, “There is no way she positively identified my client being that person on the video.
       You have seen the video. Is that even a man? There’s a strap. Is the person carrying a purse?”



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¶ 35       In rebuttal, counsel for the State argued that Womick had also testified that she had
       followed the male “around the store” and had zoomed in on his face while watching him in the
       camera room. As she concluded her rebuttal, perhaps realizing that Womick’s testimony was
       not as persuasive as she might have hoped, counsel stated, “I submit to you to watch the video.
       We watched the video and you can–you are free to use your common sense. Does that look like
       the defendant? The witness is–the video is a silent witness. It has no prejudices, no interests, no
       biases. It is what it is. From the video you saw the defendant pick up the coats and exit the
       store.”
¶ 36       Apparently it was the desire of the jury to take the State up on its suggestion to look to the
       video for a disinterested and unbiased depiction of the defendant’s alleged crime. This is not
       surprising, because although the State attempts on appeal to minimize the importance of the
       videodisk, we note that even in her opening statement, counsel for the State described the
       offense the defendant was alleged to have committed and told the jury that it would “be able to
       see the video surveillance that took place that day,” and that it would “be able to watch the
       defendant pick up merchandise from the store and exit the doors without paying for the coats.”
¶ 37       We are of course mindful of, and in agreement with, the admonition of the Supreme Court
       of Illinois in People v. Wilmington, 2013 IL 112938, ¶ 35, that the mere fact that a jury sends a
       note or notes to the trial judge should not, in and of itself, be read to mean “that the jury at any
       time had reached an impasse or that the jurors themselves considered this a close case.” As the
       State conceded at oral argument in this case, when viewed within the totality of the
       circumstances of the entire case, the behavior of the jury is but one factor for us to consider.
       Nonetheless, in light of our conclusion that Womick’s testimony could certainly be viewed as
       less than convincing, and that Officer Lomax’s testimony did not assist the State in any
       meaningful way, the events that transpired with regard to the jury and the videodisk give us
       pause, and do not support the State’s contention that the evidence in this case was not closely
       balanced, but was instead “overwhelming.”
¶ 38       As explained above, the jury sent the judge a very specific note related to a videodisk that
       had been admitted into evidence by the State. The note stated: “Can we please see the video?
       We feel that it was too far away.” The judge stated that his intention was “to replay the video
       for the jurors with the screen pulled closer to the jury box.” Neither party objected, and counsel
       for the defendant noted for the record, “[M]y approximation is the TV is now ten feet closer to
       the jury,” to which the trial judge responded, “Oh, at least.” As the judge prepared to again play
       the videodisk for the jury, juror H. asked if there was “any way you can extend that to the full
       screen so it is expanded a little more?” The judge’s one-word answer was “nope.” He played
       the videodisk for the jury, and then, without prompting from the jury or from either party,
       asked, “Is that good or do you want me to play it one more time?” Juror B. stated the following:
       “Could you play that one more time? Could you pause one part particularly? Freeze frame?”
       Juror A. then asked, “Could you freeze it? Can you freeze it?” Despite having just asked the
       jurors, sua sponte, if they wished for him to play the videodisk one more time, and despite juror
       B. asking, inter alia, if the judge could play it one more time, the judge’s response–apparently
       to all of the questions just asked of him–was again the single word “nope,” to which juror A.
       responded, “Aw, man.”
¶ 39       The jury that returned a verdict finding the defendant guilty of retail theft approximately
       one hour after beginning deliberations–and after being limited in the manner in which it could
       view one of the admitted exhibits–was a jury that had not been asked if it accepted that the

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       defendant did not have to present any evidence or testify, and that if the defendant did not
       testify it could not hold it against him. And, of course, as explained above, in this case the
       defendant exercised his right not to introduce any evidence on his own behalf, and, in
       conjunction with the exercise of that right, stated for the record, outside the presence of the
       jury, that it was his “desire not to testify.” Given the totality of the circumstances, it would be
       difficult, at best, to conclude that the trial judge’s Rule 431(b) errors did not impact the verdict
       of the jury.
¶ 40       We add that this is not a case like People v. Adams, 2012 IL 111168, ¶ 22, wherein the
       defendant’s theory of the case was so far-fetched that a commonsense analysis of the theory
       would lead one to conclude it was “highly improbable,” albeit “not logically impossible.” To
       the contrary, the defendant’s theory in this case was not far-fetched or illogical at all: it was
       simply that he was not the person who committed a retail theft at Macy’s on the date in
       question, and that the State had not proven that he was.
¶ 41       In sum, our commonsense, qualitative analysis of the evidence, viewed within the totality
       of the circumstances present in this case, leads us to conclude that the defendant has met his
       burden of persuading us that the evidence in this case was so closely balanced that the trial
       judge’s Rule 431(b) errors alone threatened to tip the scales of justice against the defendant. As
       the Supreme Court of Illinois observed in People v. Herron, 215 Ill. 2d 167, 193 (2005), when
       a defendant meets “the burden of persuasion and convinces a reviewing court that there was
       error and that the evidence was closely balanced, the case is not cloaked with a presumption of
       prejudice,” but the error is instead “actually prejudicial” to the defendant. That is because in
       cases such as this, a reviewing court must “deal with probabilities, not certainties,” and “with
       risks and threats to the defendant’s rights.” Id. “When there is error in a close case, we choose
       to err on the side of fairness, so as not to convict an innocent person.” Id. Accordingly, we
       reverse the defendant’s conviction and sentence.
¶ 42       Although we conclude that the evidence in this case was closely balanced, and reversal of
       the defendant’s conviction and sentence is required, we also conclude, after carefully
       reviewing the record, that the evidence was sufficient to prove the defendant guilty beyond a
       reasonable doubt. Accordingly, prosecution of the defendant on remand will not violate
       principles prohibiting double jeopardy (see, e.g., People v. Naylor, 229 Ill. 2d 584, 610-11
       (2008)). By so finding, “we reach no conclusion as to [the] defendant’s guilt that would be
       binding on retrial.” Id. at 611.
¶ 43       Because we have determined that the trial judge’s Rule 431(b) errors require the reversal of
       the defendant’s conviction and sentence and remand for a new trial, we need not address the
       second contention raised by the defendant on appeal, as we have no reason to believe the
       alleged error is likely to recur on remand.

¶ 44                                        CONCLUSION
¶ 45       For the foregoing reasons, we reverse the defendant’s conviction and sentence and remand
       for a new trial.

¶ 46      Reversed; cause remanded.




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