                                            2016 IL App (1st) 140785
                                                                                     THIRD DIVISION
                                                                                     June 1, 2016



                                                    No. 1-14-0785


       THE PEOPLE OF THE STATE OF ILLINOIS,                  )               Appeal from the
                                                             )               Circuit Court of
                              Plaintiff-Appellee,            )               Cook County, Illinois.
                                                             )
       v. 	                                                  )               No. 13 CR 15882
                                                             )
       TYRELL GIBBS,                                         )               Honorable
                                                             )               Matthew Coghlan,
                              Defendant-Appellant.           )               Judge Presiding.


              PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
              Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.

                                                     OPINION

¶1            Following a 2014 jury trial, defendant Tyrell Gibbs was convicted of one count of

       aggravated battery against David Winters, for which he was sentenced to two years of felony

       probation and 40 hours of community service. On appeal, Gibbs raises numerous contentions of

       error beginning with the trial court's denial of his motion for a three-week continuance on the

       day of trial. He next contends that the court erred in excluding live testimony of Winters' prior

       conviction for domestic battery, and excluding as hearsay the responding officers' testimony

       regarding their interviews with Gibbs, his girlfriend, and the victim. Finally, Gibbs argues that

       the court erred in its answer to the jury's question on the permissible use of force in defense of

       property. Finding no error, we affirm.

¶ 2	                                            BACKGROUND
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¶3          On August 13, 2013, Gibbs and his girlfriend, Tameshia Hoard, were charged with armed

     robbery, aggravated unlawful restraint, and three counts of aggravated battery arising out of the

     beating and robbery of David Winters on July 24, 2013. Gibbs was initially represented by the

     Office of the Cook County Public Defender, but later hired private counsel, who entered his

     appearance in November 2013 and indicated that he intended to pursue self-defense as an

     affirmative defense. At that time, counsel subpoenaed all photographs, inventory slips,

     documents, reports and records relating to Gibbs' arrest on July 24.

¶4          In court on December 2, 2013, Gibbs acknowledged receipt of "reports, inventories,

     GPR's, and OEMC records." Specifically, the arrest report he received reflected that arresting

     officers recovered proceeds from the crime, which were given inventory number 12960723, as

     well as prisoner property inventoried under number 12960724. Inventory sheet number

     12960723 was attached to the report and indicated that a black iPhone 3 was recovered from

     Gibbs. The State informed the court that other than discovery relating to a 911 call, it believed

     discovery was complete.

¶5          At the next court date on January 9, 2014, Gibbs filed a written demand for a bench trial,

     and pursuant to the State's motion, trial was scheduled for February 14. On the scheduled trial

     date, Gibbs informed the court that due to codefendant Hoard's plea of guilty that same day, he

     was seeking a jury trial, but remained ready to proceed that day. The State, however, was not

     ready to proceed, and the matter was continued to February 18 on the State's motion.

¶6          On Tuesday, February 18, Gibbs informed the court that the State had tendered additional

     discovery over the weekend in the form of six photographs of him taken at the time of booking,

     as well as inventory sheet number 12960724 reflecting that he was in possession of two

     additional cell phones when he was arrested. Due to this late-tendered discovery, Gibbs believed



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     the State's case was "a little stronger" than previously assessed, and sought a one-month

     continuance to "reprioritize and rethink" his trial strategy. Specifically, he wished to tender

     additional character witnesses and locate evidence tending to show Winters' violent nature.

     Gibbs also contended that Hoard's plea was a "major change" given that he had assumed she

     would testify consistently with the statements she gave to police after her arrest, which he said

     corroborated his own statements. The court denied Gibbs' request, pointing out that he was on

     notice of the missing inventory report given the reference to it in the State's discovery response

     and that the photographs were cumulative of other evidence the State planned to introduce.

     However, when the case was re-called that afternoon, the court stated that due to the lateness of

     the hour, it would hold the case until Thursday, February 20, when it would pick a jury. Gibbs

     again requested an additional week, which the court denied.

¶7          On February 20, Gibbs renewed his motion for a continuance, arguing that the newly

     received photographs were potentially inculpatory, as they revealed he suffered very few

     wounds, which contradicted his theory of self-defense. Gibbs further argued that he was unaware

     that in addition to the victim's black iPhone 3, the police recovered two other cell phones from

     him. He explained that while the arrest report referenced an additional inventory sheet (number

     12960724), it was not returned on his subpoena. Gibbs concluded that the increased strength of

     the State's case stemming from this new discovery required him to pursue evidence of Winters'

     propensity for violence in an attempt to bolster his case. According to Gibbs, he had retained an

     investigator who would need three weeks to gather propensity evidence.

¶8          The court denied the motion on the ground that Gibbs was on notice of the existence of

     the evidence of the phones and photographs for several months and that notwithstanding his

     claim of self-defense, he had made a "strategic decision" over the preceding months not to



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       pursue propensity evidence. The court went on: "It strikes me as a desire to delay now that the

       State has answered ready, and they have their complaining witness here in court. It's not a game

       where you can answer ready, demand trial, knock some time off the term, and then request a

       continuance once the State answers ready."

¶9             The court then heard arguments on motions in limine, including Gibbs' motion to

       exclude the late-tendered discovery, which the court denied. Gibbs also moved to allow the

       arresting officers to testify about the statements he, Winters and Hoard made at the time of the

       incident. Gibbs argued that this was not hearsay and would be introduced to show the course of

       the officers' investigation and the effect of the statements on the officers. The court denied the

       motion as an attempt to introduce exculpatory statements by Hoard. Finally, Gibbs moved to

       introduce evidence of prior violent acts by Winters in the form of a 14-year-old conviction for

       domestic battery and over 25 arrests for violent crimes. The court allowed Gibbs to question

       Winters about his battery conviction, but excluded evidence of the arrests. The State sought

       clarification on the court's order and asked the court to limit evidence of Winters' domestic

       battery conviction to a certified copy of his conviction and exclude testimony regarding the

       underlying facts. Gibbs objected, but the court granted the State's motion and forbade Gibbs

       from asking Winters about the conviction.

¶ 10          The jury trial began the following day on February 21. The State called Winters as its

       first witness, who began by admitting that he had two misdemeanor assault cases pending in

       Minnesota on which there was an outstanding warrant. However, he denied that he had been

       promised anything for his testimony in the instant case.

¶ 11          Winters admitted that during the day of the incident, July 24, 2013, he drank alcohol and

       used cocaine. At midnight, he was on the phone with his daughter while walking down Farwell



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       Street in Chicago. At approximately 12:45 a.m., he noticed a man and a woman on the street,

       and the woman approached him asking for "a light." He disconnected his call and proceeded to

       light the woman's cigarette. As he walked away, he was hit in the head, and turned around to see

       the man, who he identified in court as Gibbs, holding a brick. Winters and Gibbs then began

       struggling, and Gibbs called for the woman to help. She scratched at Winters' face while Gibbs

       pulled Winters' fleece over his head. Winters felt pain in his face and ran away from the couple;

       as he ran, he called the police. Gibbs continued to chase Winters, and when Winters tripped,

       Gibbs hit him once again with the brick. When Winters regained consciousness, he did not see

       his phone, but he saw Gibbs and the woman running back toward Farwell Street. Police arrived

       to help Winters, and brought Gibbs and the woman back to him, where he positively identified

       them as his attackers. Later, Winters was transported to the hospital, where he was treated for

       his head injury.

¶ 12          On cross-examination, Gibbs asked Winters if he had been convicted of domestic battery,

       but the State's objection to this question was sustained.

¶ 13          Officer Terrance Fowler of the Chicago Police Department was on patrol with his partner

       in the early morning hours of July 24, 2013 when they received a call about a battery in progress.

       The caller stated that he saw a man and woman in dark clothing beating a man in a white t-shirt

       near Clark and Farwell Streets. When Officer Fowler neared that location, he observed a man

       and woman running northbound on Clark Street. The officers stopped the couple, and the man,

       identified in court as Gibbs, had blood on both arms as well as on his black t-shirt. Gibbs told

       Officer Fowler that the blood was "the other guy's." Officer Fowler observed that Gibbs' sole

       injury was a cut on his right hand. Officer Fowler then communicated via radio that he had

       possibly apprehended the offenders, whereupon he learned that other officers had located



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       Winters nearby. Officer Fowler walked Gibbs and the woman to the victim's location where the

       victim, who was lying on the ground with blood on his head, identified the couple as his

       attackers. Before placing Gibbs in custody, Officer Fowler conducted a custodial search and

       retrieved a black iPhone 3, which Winters said belonged to him, as well as two other cell phones,

       one of which was also an iPhone. All phones as well as other items found on Gibbs were

       inventoried.

¶ 14          Gibbs' testimony differed from that offered by Officer Fowler and Winters. According to

       Gibbs, on July 23, 2013, at around 10:00 p.m., Hoard, the mother of Gibbs' son, arrived at his

       mother's house. Shortly thereafter, Gibbs and Hoard set off for the Metra station in the Rogers

       Park neighborhood of Chicago, which was approximately one hour away from Gibbs' mother's

       house so that Hoard could return home. Gibbs and Hoard arrived at the train station at midnight

       and discovered that Hoard had missed the last train, at which point the couple decided to go to

       their friend Lorenzo's house. On their way, Hoard stopped a man on Clark Street and asked him

       to light her cigarette. Gibbs and Hoard continued to Lorenzo's house, but Lorenzo did not

       answer the door.

¶ 15          Gibbs and Hoard then walked back towards Clark Street when the same man whom

       Hoard asked for a light said he was a police officer and told them to put their hands up. Gibbs

       smelled alcohol on the man's breath and asked to see his badge, but the man wrapped his hands

       around Gibbs' neck. Gibbs fought with the man, who was pulling his hair. (Gibbs identified

       scratches on his forehead from the fight in a photograph taken shortly after the encounter.)

       Gibbs asked Hoard to help, and Hoard slapped the man, who punched her in the face. Gibbs also

       identified Hoard's photograph revealing a black eye. Hoard and Gibbs were both on the ground

       when the man took Hoard's phone, which had fallen out of her pocket, and fled. Gibbs gave



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       chase, but the men both tripped and began fighting once again. As the man was hitting him,

       Gibbs located a brick on the ground and hit him in the head. The man fell, and Gibbs noticed

       Hoard's phone as well as an iPhone on the ground that he believed belonged to him. Gibbs took

       both phones and ran back to Hoard, instructing her to run. Approximately two minutes after they

       fled, the police stopped and questioned them as Officer Fowler testified.

¶ 16          Rosia Carter and Bob Montgomery, both of whom had known Gibbs for over eight years,

       testified to his peaceful nature. Carter, who works for an educational resource program founded

       by Montgomery, testified that she placed Gibbs as a youth director at an elementary school and

       found him to be peaceful and well-mannered. Montgomery echoed Carter's testimony.

¶ 17          The parties then entered several stipulations, one of which was Winters' conviction for

       domestic battery in 2000.

¶ 18          Following closing argument, the jury was instructed on the elements of armed robbery

       and aggravated battery. During deliberations, the jury sent out numerous questions, one of which

       asked "once property is no longer in the possession of the defendant, is the defendant justified in

       using force to reobtain his property or is it just when the defendant is in possession of that

       property?" Attached to the question was the instruction reading: "A person is justified in use of

       force to prevent another person's interference with personal property lawfully in his possession."

       The State suggested the court inform the jury that it had all the instructions and it should

       continue to deliberate, while Gibbs' counsel suggested the answer should be 'yes,' to which the

       State objected. Counsel then stated: "Well, I mean I'm not – that's all you send back to them.

       Or you have the jury instructions. Continue [] deliberating." The court then offered that the

       answer could be 'yes' if the defendant "reasonably believes that such conduct is necessary to

       prevent another's wrongful interference with personal property lawfully in his possession."



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       Gibbs' counsel stated he had no problems with "[the court's] instruction or [the court's] answer,"

       but the court ultimately concluded that its suggested answer was improper and said it would

       answer that the jury should refer to its instructions and continue deliberations. Gibbs did not

       object.

¶ 19             Ultimately, the jury found Gibbs not guilty of armed robbery, but guilty of aggravated

       battery on a public way.

¶ 20             Gibbs moved for a new trial, arguing, in relevant part, that the court should have

       permitted a three-week continuance so that he could obtain evidence of Winters' violent nature.

       As support for this argument, he produced 30 reports of Winters' arrests for crimes such as

       aggravated criminal sexual assault, battery, armed robbery, and assault. Gibbs also introduced

       his investigator's report, in which his investigator recounted an interview with Winters' former

       girlfriend, Sherrie Macon. Macon, who was the victim in Winters' 1994 arrest for battery, told

       the investigator that Winters abused her throughout their six-year relationship. In September

       1994, Winters broke into Macon's apartment and began choking her, and when Macon's screams

       alerted security, Winters fled and was captured under a car. Macon did not press charges on this

       or other occasions in which Winters attacked her. She and Winters have two children together

       but do not talk regularly.

¶ 21             The court denied Gibbs' motion for a new trial and sentenced him to two years of

       probation and 40 hours of community service.

¶ 22                                                 ANALYSIS

¶ 23             We turn first to the trial court's decision to deny Gibbs' motion for a continuance on the

       day of trial, which we review for an abuse of discretion. People v. Weeks, 2011 IL App (1st)

       100395, ¶ 30. A trial court abuses its discretion when its ruling is "arbitrary, fanciful,



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       unreasonable, or where no reasonable person would take the view adopted by the trial court." Id.

       (quoting People v. Hall, 195 Ill. 2d 1, 20 (2000)).

¶ 24          On February 18, the day trial was scheduled to begin, Gibbs requested a continuance in

       order to obtain witnesses who could testify to Winters' violent nature. The trial court queried

       why Gibbs had not yet obtained such evidence, given that in his answer of January 9, 2014, he

       had raised self-defense as an affirmative defense. Gibbs explained that two events motivated

       him to change his trial strategy: (1) the unexpected unavailability of Hoard due to her plea

       agreement on February 14; and (2) the State's recently tendered discovery, in the form of

       booking photographs of Gibbs and an inventory sheet reflecting that Gibbs was in possession of

       two additional phones at the time of his arrest. According to Gibbs, he had hoped that Hoard

       would testify consistently with Gibbs' account of the events, and was planning to highlight their

       corroborative accounts as evidence that Gibbs was acting in self-defense, but given her plea, as

       well as the new discovery, Gibbs now wanted to emphasize Winters' history of violence to

       bolster his argument.

¶ 25          When a continuance is requested to obtain additional evidence, the court should consider

       the defendant's diligence, along with whether (i) the testimony was material and might have

       affected the jury's verdict, and (ii) defendant was prejudiced. People v. Ward, 154 Ill. 2d 272,

       304 (1992). Here, the court's decision to deny the motion for continuance rested on Gibbs'

       earlier demand for trial as well as his lack of diligence in pursuing his defense.

¶ 26          We first note that the court's consideration of the fact that Gibbs had answered ready for

       trial prior to asking for a continuance was not improper. See, e.g., People v. Davis, 147 Ill. App.

       3d 800, 803 (1986) (considering fact that defendant had previously demanded trial in holding




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       that trial court did not abuse discretion in denying motion for continuance to obtain alibi

       witness).

¶ 27          But more significantly, the court's conclusion that Gibbs did not act diligently is amply

       supported by the record. While Gibbs argues that his failure to pursue a defense based on

       Winters' violent criminal history was based on Hoard's unexpected "unavailability" and the late-

       tendered discovery, there is no evidence that either event was a surprise requiring a change in

       trial strategy. Indeed, with regard to Hoard's plea, Gibbs learned that Hoard pled guilty on

       February 14, 2014, the day the case was originally set for trial. On that day, Gibbs' only request

       was a change from a bench to a jury trial. Specifically, he stated, "in light of the plea that was

       just made by the co-defendant, [] we are asking for a jury trial. We are ready to go, though."

       (Emphasis added.) When the State said that it was not ready to proceed, the court agreed to

       continue the matter until February 18, and asked if that was by agreement, to which Gibbs

       responded in the negative, saying he was "continuing the demand." It is evident from this

       exchange that Gibbs knew on February 14 that corroborative testimony from Hoard would be

       unavailable given her guilty plea and that he was nonetheless prepared to proceed to trial that

       day, thus belying his claim on appeal that Hoard's guilty plea prompted a wholesale reevaluation

       of his trial strategy. Moreover, there is no evidence supporting Gibbs' contention that Hoard

       would have testified consistently with his account of events, which further undercuts his claim of

       surprise.

¶ 28          Nor could the late-tendered discovery have prompted Gibbs to reconsider his trial

       strategy, as Gibbs could not have been surprised by either the photographs or the inventory

       report. First, Gibbs, as the subject of the photographs, was necessarily aware of their existence.

       Likewise, Gibbs knew that police confiscated three phones, and not one, from him at the time of



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       his arrest. Moreover, Gibbs' counsel was in possession of the arrest report which indicated that

       prisoner property was inventoried at number 12960724. Gibbs did not receive this inventory

       sheet on his subpoena, but nevertheless represented that he was ready to proceed. Having

       demanded trial with knowledge that discovery was missing, he cannot now contend that receipt

       of the missing discovery surprised him and justified a continuance to reevaluate his trial strategy.

       In sum, the court was not unreasonable in determining that Gibbs' failure to pursue a strategy

       emphasizing Winters' criminal history reflected a lack of diligence that could not be excused by

       his allegations of surprise. This is particularly true where, as part of discovery (and months prior

       to trial), Gibbs was provided with Winters' Criminal History Report reflecting dozens of arrests

       for alleged crimes of violence. And because Gibbs failed to act diligently in pursuing this

       defense, we conclude that the trial court did not abuse its discretion in denying Gibbs a three-

       week continuance on the day of trial.

¶ 29          Furthermore, the jury's acquittal of Gibbs on the armed robbery charge leads us to

       conclude that the jury believed, as Gibbs testified, that Winters was the initial aggressor, but the

       jury likewise concluded that Gibbs' conduct in chasing Winters and hitting him with a brick in

       order to retrieve Hoard's cell phone supported the aggravated battery charge. This being the

       case, additional evidence of Winters' violent nature would have had little, if any, effect on the

       latter conviction. Therefore, the denial of a continuance to pursue additional evidence of

       Winters' propensity for violence did not prejudice Gibbs.

¶ 30          To the extent that Gibbs argues that the late-tendered discovery alone was a basis for the

       trial court to grant a three-week continuance, we disagree. Significantly, the trial court did grant

       Gibbs a two-day continuance to review the discovery. Furthermore, in order to demonstrate

       entitlement to a continuance for a discovery violation, it is the defendant's burden to show not



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       only surprise, but prejudice. People v. Heard, 187 Ill. 2d 36, 63 (1999). Gibbs has not met this

       burden here, as the discovery was cumulative to Officer Fowler's testimony. See People v. Dial,

       95 Ill. App. 3d 345, 358 (1968) (no prejudicial error in allowing presentation of cumulative

       evidence). Specifically, Officer Fowler testified that, as the photographs reflected, Gibbs' only

       injury was to his hand, and that, consistent with inventory sheet number 12960724, he recovered

       three cell phones from Gibbs. Thus, while we do not condone the State's delay in providing this

       discovery to defense counsel, that delay, standing alone, does not entitle Gibbs to a new trial.

¶ 31          Gibbs next argues that the trial court improperly denied him the opportunity to cross-

       examine Winters regarding his 2000 conviction for domestic violence and instead limited the

       evidence of his conviction to a stipulation.

¶ 32          Initially, the State contends that Gibbs has waived this argument because he consented to

       the entry of evidence by stipulation. But the record does not support this contention. When the

       court initially granted Gibbs' motion in limine to introduce evidence of Winters' domestic

       violence conviction, it stated that in the exercise of its discretion, it would allow Gibbs "to ask

       the victim if he was convicted of domestic battery." The next day, however, the State requested

       a "clarification" of the court's order and asked, in pertinent part, that the court limit the evidence

       regarding the conviction to a stipulation. Gibbs objected, arguing that he "should be allowed to

       go into [the facts of the conviction] with David Winters in the State's case in chief." But the

       court agreed with the State and ruled that Gibbs would not be permitted to ask Winters about the

       conviction. Nevertheless, when cross-examining Winters, Gibbs queried whether he had been

       convicted of domestic battery, and the court sustained the State's objection to that question.

       Thus, Gibbs sufficiently preserved this issue for review.




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¶ 33          The admissibility of evidence is within the discretion of the court and we will not reverse

       the court's decision absent an abuse of discretion. People v. Coleman, 347 Ill. App. 3d 266, 269

       (2004). The parties do not dispute that where a defendant raises a theory of self-defense,

       evidence of the victim's violent character is relevant to show who was the aggressor. People v.

       Lynch, 104 Ill. 2d 194, 200 (1984). So-called "Lynch evidence" may take the form of the

       victim's convictions for violent crimes or the victim's previous arrests.

¶ 34          In this case, the court allowed Gibbs to present evidence of Winters' 14-year-old

       conviction for domestic violence via stipulation. Nowhere does Lynch require that the court

       must allow live testimony on the issue of a victim's prior conviction. Rather, it is only where the

       evidence of a victim's violent character is based on arrests or altercations for which there was no

       conviction that live testimony is required. See People v. Simon, 2011 IL App (1st) 091197, ¶ 72

       (quoting People v. Cook, 352 Ill. App. 3d 108, 128 (2004)). This is because while a conviction is

       "persuasive proof" that the victim committed a crime, an arrest offers no such proof since it does

       not indicate that the victim actually engaged in the alleged conduct. Cook, 352 Ill. App. 3d at

       128. To that end, this court has required "firsthand testimony as to the victim's behavior" when

       introducing evidence of a prior arrest for a violent crime. Id. No such testimony is needed

       where, as here, the conviction itself is proof that the victim committed the crime. Indeed,

       testimony regarding the particulars of a prior conviction can lead to a "trial within a trial" and

       distract from the relevant issues. See People v. Oaks, 216 Ill. App. 3d 1072, 1075 (1991) (trial

       court did not abuse discretion in excluding testimony regarding circumstances of witness' prior

       conviction as "collateral matter"). The trial court certainly could have exercised its discretion to

       allow limited questioning of Winters, but given the age of the conviction and its factual

       dissimilarity to the charge in this case, it was likewise appropriate to address the matter via



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       stipulation. Therefore, it was not an abuse of discretion for the court to refuse to allow cross-

       examination of Winters on the facts of the domestic battery conviction.

¶ 35           Next, Gibbs argues that the trial court improperly denied his motion in limine seeking to

       introduce testimony from Detective Hart and Officers Batzer and Fowler regarding the

       statements Gibbs, Hoard, and Winters made following the attack. Ordinarily, the trial court's

       ruling on a motion in limine is subject to review for an abuse of discretion, but a party forfeits

       review of his challenge if he fails to make an offer of proof. People v. Andrews, 146 Ill. 2d 413,

       421 (1992).

¶ 36          "Where a defendant claims that he has not been given the opportunity to prove his case

       because the trial court improperly barred evidence, he 'must provide [the] reviewing court with

       an adequate offer of proof as to what the excluded evidence would have been.'" People v. Pelo,

       404 Ill. App. 3d 839, 875 (2010) (quoting In re Estate of Romanowski, 329 Ill. App. 3d 769, 773

       (2002)). This offer need not be a formal elicitation of the witness' testimony under oath, but may

       be informal and consist of counsel's representations regarding the contents of the testimony. Id.

       However, an offer that "merely summarizes the witness' testimony in a conclusory manner is

       inadequate." Andrews, 146 Ill. 2d at 421. In other words, counsel must explicitly state what the

       excluded testimony would reveal. Id.; see also People v. Peeples, 155 Ill. 2d 422, 457 (1993)

       (offer of proof must be "considerably detailed and specific").

¶ 37          Here, Gibbs made neither a formal nor informal offer of proof. Instead, in his written

       motion he said only that he wished to cross-examine the officers "regarding the statements that

       each of the witnesses made to them during the course of their investigation." And in arguing the

       motion before the trial court, he confirmed that he wanted to "bring in" the statements of Hoard,

       Gibbs and Winters to show their effect on the officers' investigation. Gibbs alluded to the fact



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       that the testimony would reveal that his and Hoard's statements corroborated each other, but did

       not provide any specific details of what the officers' testimony would be with regard to those

       statements. In the absence of proof as to the substance of the excluded testimony, it is

       impossible for us to review the trial court's decision. See Andrews, 146 Ill. 2d at 421 (without

       specific details of content of conversation sought to be admitted, court could not determine if

       excluded testimony had "any relevance to the proceedings at hand"). Particularly in light of the

       fact that Hoard pled guilty and that her plea (according to Gibbs) entailed stipulated facts at odds

       with her statements to police, it was incumbent on Gibbs to specifically inform the court via an

       offer of proof what he anticipated the excluded testimony would be.

¶ 38          In any event, the trial court did not err in precluding Gibbs from introducing prior

       consistent statements under the guise of the "course of investigation" exception to the hearsay

       rule. See People v. Ruback, 2013 IL App (3d) 110256, ¶ 26 (prior consistent statements may be

       introduced only to rebut charge of recent fabrication or that witness had motive to testify falsely).

¶ 39          Gibbs' final argument concerns the trial court's answer to the jury's question regarding

       whether a defendant is justified in using force to reobtain his property when it is no longer in his

       possession. The trial court answered that the jury had its instructions and should continue to

       deliberate, but Gibbs contends that the answer should have been "yes."

¶ 40          The State argues that Gibbs failed to preserve this argument for review, and we agree.

       While Gibbs raised this issue in his posttrial motion, he did not object to the trial court's answer

       at the time it was given, resulting in forfeiture. See People v. Enoch, 122 Ill. 2d 176, 186 (1988)

       (objection at trial and in posttrial motion necessary to preserve issue for review).

¶ 41          Ordinarily, we would still review for plain error (see People v. Piatkowski, 225 Ill. 2d

       551, 565 (2007) (plain error doctrine allows reviewing court to consider unpreserved error in



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       certain narrow circumstances)), but Gibbs not only failed to object to the court's answer to the

       jury's question, he affirmatively acquiesced in that answer, as evidenced by the following

       exchange:

                  THE COURT: Once property is no longer in the possession of defendant, is
              the defendant justified in using force to reobtain his property or is it just when the
              defendant is in possession of that property?

                 MR. ENGEBRETSON [Assistant State's Attorney]: Judge, we take the same
              position. You have all the instructions. Please continue to deliberate. ***

                  MR. NELLIS [defense attorney]: *** I think that given the facts that are
              presented to the jury this being an ongoing fight, I think that the answer would be
              yes.

                   MR. ENGEBRETSON: We would object to that.

                 MR. NELLIS: Well, I mean I'm not – that's all you send back to them. Or you
              have the jury instructions. Continue [] deliberating."

                 THE COURT: The answer could be yes, if he reasonably believes that such
              conduct is necessary to prevent . . .

                   MR. NELLIS: Yes, if you reasonably believe. I didn’t catch the end of that.

                 THE COURT: If he reasonably believes that such conduct is necessary to
              prevent another's wrongful interference with personal property lawfully in his
              possession.
                                                     ***
                 MR. NELLIS: I have no problem with your instruction or your answer.

                  THE COURT: I don't know if that's a proper one either. I think I will answer
              please refer to your instructions and continue your deliberations.

                   MR. ENGEBRETSON: We agree, Judge. (Emphasis added.)

¶ 42          This colloquy reflects that Gibbs suggested both an answer of "yes," as well as an answer

       instructing the jury to continue deliberating. Because Gibbs agreed to the answer given at trial,

       he cannot now complain that answer was in error. See People v. Harvey, 211 Ill. 2d 368, 385

       (2004) ("To permit a defendant to use the exact ruling or action procured in the trial court as a



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       vehicle for reversal on appeal would offend all notions of fair play, and encourage defendants to

       become duplicitous.") (Internal quotation marks omitted.) Under these circumstances, we

       decline to review for plain error. People v. Patrick, 233 Ill. 2d 62, 77 (2009) (where defendant

       proffered jury instruction he alleged on appeal was erroneous, court would not review for plain

       error).

¶ 43             In any event, we find unpersuasive Gibbs' citation to People v. Swartz, 186 Ill. App. 3d

       399 (1989), as support for his claim that a defendant is justified in using force to reobtain

       property no longer in his possession. In Swartz, we held that the defendant was entitled to an

       instruction regarding the justifiable use of force where the defendant, while in a car with the

       victim, pulled the victim's hair to recover his property (the keys to his car). Id. at 401. Here, on

       the other hand, the evidence (including Gibbs' own testimony) revealed that Gibbs chased

       Winters and struck him with a brick in order to retrieve his cell phone. Given the dissimilar

       circumstances and the obvious difference in the degree of force used to reobtain the property,

       Swartz does not support Gibbs' argument that the court should have answered the jury's question

       in the affirmative.

¶ 44                                              CONCLUSION

¶ 45             Accordingly, the judgment of the circuit court is affirmed.

¶ 46             Affirmed.




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