                         NO. 4-05-0531            Filed 4/13/07

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    McLean County
WILLIAM LEROY OWENS,                   )    No. 04CF65
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Ronald C. Dozier,
                                       )    Judge Presiding.
_________________________________________________________________

          PRESIDING JUSTICE STEIGMANN delivered the opinion of

the court:

          In January 2005, a jury convicted defendant, William

Leroy Owens, of attempt (first degree murder) of Mary Griffin

(720 ILCS 5/8-4(a), 9-1 (West 2004)), and the trial court later

sentenced him to 24 years in prison.

          Defendant appeals, arguing only that the State improp-

erly elicited the victims' opinions that defendant intended to

kill Griffin and another victim.   We affirm.

                          I. BACKGROUND

          In January 2004, the State charged defendant with

attempt (first degree murder) of Griffin (720 ILCS 5/8-4(a), 9-1

(West 2004)) (count I); attempt (first degree murder) of Grif-

fin's daughter, Kourtney Davis (720 ILCS 5/8-4(a), 9-1 (West

2004)) (count II); domestic battery (720 ILCS 5/12-3.2(a)(2)

(West 2004)) (count III); and unlawful use of a weapon by a felon
(720 ILCS 5/24-1.1(a) (West 2004)) (count IV).    The attempt

counts charged defendant with taking a substantial step toward

commission of the offense of first degree murder in that he

poured gasoline on Griffin and Davis and attempted to ignite the

gasoline with a lighter.

            Following a November 2004 trial, a jury convicted

defendant of counts III and IV.    However, the jury could not

reach a verdict on either attempt count.

            Defendant's second jury trial on the attempt (first

degree murder) charges occurred in January 2005.     Because defen-

dant does not challenge the sufficiency of the evidence, we

review it only to the extent necessary to place defendant's

argument in context.

            Griffin testified that on January 16, 2004, she was

living with Davis (who was then 12 years old) and defendant in a

townhome.    Neither Griffin nor defendant smoked.   In the early

evening, Griffin and defendant ran some errands together and got

gas for Griffin's car.    Griffin then dropped defendant off at

their residence and went to visit some friends.

            When Griffin returned home close to midnight, Davis was

there, but defendant was not.    Griffin went upstairs and prepared

for bed.    As she did so, the doorbell rang downstairs.   Davis

went downstairs, opened the door, and saw defendant standing

there.   (This was unusual because he had a key to the residence.)


                                - 2 -
Defendant told Davis to tell Griffin to come downstairs.     Davis

did so, but Griffin did not want to go downstairs because she was

tired.   She then heard defendant say, in a harsh and angry tone

of voice, "Tell her to come down right now."    Griffin yelled from

the top of the stairs to defendant, "What are you talking about?"

Defendant responded, "I am tired of this shit, I am tired of you

punking me.   We are going to settle this now."

           Griffin then said, "What are you talking about?     What

is going on?"    Defendant responded, "So, you want to involve your

daughter in this?"   That caught Griffin's attention, but she

still had no idea what defendant was talking about.    At the time,

Davis was in the kitchen.    Griffin told defendant that he should

come upstairs so they could talk.

           Defendant then ran upstairs, and Griffin saw him reach

down toward his left side.    Things happened quickly at that

point, and the next thing Griffin remembered was Davis saying,

"Don't hit my mom like that."    Griffin then felt liquid on her

head and face.   She did not know what it was until she smelled

that it was gasoline.   Defendant was facing her and   "just

pouring" the gasoline on her as if he "had a hose."    At this

point, Griffin saw defendant throw gasoline on Davis, who was

then standing next to them.

           Griffin then heard a "click, click, and [she looked] up

and [defendant] had, in his hand, a lighter, a blue lighter."


                                - 3 -
When Griffin heard it clicking and saw sparks, she panicked.

           All of these events happened in a matter of seconds as

defendant stood just a few feet away from Griffin.    Griffin

grabbed the collar of defendant's coat and pulled it toward her.

Defendant then dropped the container and the lighter, and

Griffin told Davis to run.   Davis ran outside with a phone in her

hand.

           The prosecutor then (without objection) asked Griffin

what her physical condition was at that point during the incident

and what she was then thinking.   Griffin responded as follows:

"I am thinking this man had every intention of trying to set me

on fire.   He comes in the house with gasoline, runs upstairs[,]

and douses me with it and douses my daughter[,] and I see a

lighter in his hand flicking it."

           Griffin also testified that she and defendant then

struggled, and he began to choke her.    She struck him in the face

and knocked his glasses off.

           The prosecutor then (again, without objection) asked

Griffin, "What did you think he was doing when he was trying to

get his hands around your throat?"     She responded, "He was trying

to kill me.   He couldn't do it with the lighter and the fluid,

now he was going to try to do it with his hands."

           Griffin further testified that after she struck defen-

dant, he ran toward the bedroom, paused there, and then ran back


                               - 4 -
at her.    He pushed her "real hard," and then started to choke her

again.    As she was fighting him off, she heard police sirens.

Defendant then stopped choking her and got up off the floor.

Griffin ran outside where she saw Davis in the parking lot with

some people who were protecting her.       The police arrived shortly

thereafter and arrested defendant.

            Davis testified consistently with Griffin's testimony.

At one point, the prosecutor asked Davis, "When you were in the

kitchen with your mom and the defendant and he was flicking gas

and flicking the lighter[,] what did you think he was trying to

do?"   She answered, "Kill us."

            The State called several other witnesses, including

four police officers and a fireman.       They all corroborated

Griffin's testimony.    Other evidence established that defendant

had purchased gasoline earlier that same evening from a gas

station not far from Griffin's residence.       Defendant pumped the

gasoline into a milk jug until the clerk of the gas station

noticed, shut the pump off, and offered him a gas can instead.

            The trial court also admitted in evidence a videotaped

statement defendant made to the police on the night of the

incident.    During that statement, defendant said that after

Griffin left to visit friends, he decided to buy more gasoline

for Griffin's car.    He took a milk container to the gas station

and put gasoline in it.    He paid for the gasoline and other


                                  - 5 -
items, including a lighter.   As he walked home, the cap came off

the milk jug, and he spilled some on himself.       He admitted

arguing with Griffin at the top of the stairs but explained that

he spilled gasoline on Griffin and Davis only because he waved

the jug around as they argued.    He denied removing the lighter

from his pocket or touching Griffin.

          The trial court advised defendant of his right to

testify, and he declined to do so.       On this evidence, the jury

convicted defendant of attempt (first degree murder) of Griffin

but acquitted him of attempt (first degree murder) of Davis.

          In March 2005, the trial court sentenced defendant to

(1) 24 years in prison for attempt (first degree murder), (2) 5

years in prison for unlawful use of a weapon, and (3) 364 days in

jail for domestic battery, with those sentences to run concur-

rently.

          This appeal followed.

    II. DEFENDANT'S CLAIM THAT THE STATE IMPROPERLY ELICITED
       THE VICTIMS' OPINIONS THAT HE INTENDED TO KILL THEM

          Defendant argues that the State improperly elicited the

opinion testimony of Griffin and Davis that defendant intended to

kill them.   Specifically, he contends that Griffin and Davis were

laywitnesses, not experts, and "[l]aywitness testimony is espe-

cially improper when it goes to the ultimate question of fact

that is to be decided by the jury.       People v. McClellen, 216 Ill.

App. 3d 1007, [1013,] 576 N.E.2d 481, 486 (1991)."       In support of

                                 - 6 -
this argument, defendant also cites People v. Crump, 319 Ill.

App. 3d 538, 542-43, 745 N.E.2d 692, 696-97 (2001), in which the

appellate court, citing McClellen approvingly, reversed the

defendant's conviction because a police officer was permitted to

state his opinion "about the ultimate disputed fact [of] the

case."

           In response, the State argues that defendant has

forfeited this issue on appeal because he did not object when

either Griffin or Davis so testified nor did he raise this issue

in his posttrial motion.   In response to the State, defendant

contends that his procedural default may be excused as plain

error.   However, before addressing whether the complained-of

testimony constitutes plain error, we will first determine

whether it constitutes any error at all.   See People v. Sims, 192

Ill. 2d 592, 621, 736 N.E.2d 1048, 1063 (2000) ("Before invoking

the plain[-]error exception, however, 'it is appropriate to

determine whether error occurred at all.' People v. Wade, 131

Ill. 2d 370, 376[, 546 N.E.2d 553, 555] (1989)").

           A. The Discredited "Ultimate Fact" Doctrine
                    Regarding Opinion Testimony

           As stated above, defendant's primary contention regard-

ing the testimony of Griffin and Davis that defendant intended to

kill them is that, in accordance with McClellen, it constituted

lay opinion testimony that "is especially improper when it goes

to the ultimate question of fact that is to be decided by the

                               - 7 -
jury."   However, decisions rendered by the Supreme Court of

Illinois since McClellen make clear that the above holding is no

longer good law.

           In Zavala v. Powermatic, Inc., 167 Ill. 2d 542, 544,

658 N.E.2d 371, 373 (1995), the supreme court wrote the follow-

ing:

           "It has been settled for some time that ex-

           pert opinion testimony on an ultimate fact or

           issue does not impermissibly intrude on the

           fact finder's role.   [Citation.]   That notion

           applies in both civil and criminal contexts

           in this State so long as all other require-

           ments for the admission of expert testimony

           are met.   [Citations.]   The reason:   the

           trier of fact is not required to accept the

           expert's conclusion."

           In People v. Terrell, 185 Ill. 2d 467, 496, 708 N.E.2d

309, 324 (1998), the defendant argued on appeal that the trial

court abused its discretion by permitting a police detective to

testify that he had never before seen injuries like those suf-

fered by the victim.    Specifically, the defendant contended that

because the trial court erred by determining that the detective

was an expert witness, the detective was improperly permitted to

testify to his opinion of an ultimate issue of fact--namely, the


                                 - 8 -
exceptionally brutal or heinous nature of the crime.       The supreme

court rejected defendant's argument, explaining as follows:

           "Initially, we note that it is now well set-

           tled that a witness, whether expert or lay,

           may provide an opinion on the ultimate issue

           in a case.   [Citation.]   This is so because

           the trier of fact is not required to accept

           the witness' conclusion and, therefore, such

           testimony cannot be said to usurp the prov-

           ince of the jury."   (Emphasis added.)

           Terrell, 185 Ill. 2d at 496-97, 708 N.E.2d at

           324.

           In People v. Raines, 354 Ill. App. 3d 209, 220, 820

N.E.2d 592, 601 (2004), this court cited approvingly Terrell's

holding that a witness, whether expert or lay, may provide an

opinion as to the ultimate issue in the case.     See also People v.

Reatherford, 345 Ill. App. 3d 327, 341, 802 N.E.2d 340, 353

(2003) (also citing Terrell approvingly).

           Further, in his treatise on Illinois evidence law,

Professor Michael H. Graham notes that the "modern trend is

firmly in accord" with the supreme court decisions in Zavala and

Terrell.   Graham also notes that "Wigmore dismissed the common[-]

law ultimate[-]issue rule as 'a mere bit of empty rhetoric.'"

Graham, Cleary & Graham's Handbook of Illinois Evidence §704.1,


                                - 9 -
at 585 (8th ed. 2004), quoting 3 J. Wigmore, Evidence §1920

(Chadbourn rev. ed. 1974).

           Accordingly, we reject defendant's argument that the

lay opinion testimony of Davis and Griffin "is especially im-

proper" because it went to the ultimate question of fact that is

to be decided by the jury.   To the extent that McClellan supports

defendant's effort to resurrect the now-discredited "ultimate

fact" doctrine, we decline to follow McClellan and its progeny.

                     B. Lay Opinion Testimony

           Leaving aside defendant's initial reliance on the

discredited "ultimate fact" doctrine, we still must address the

appropriateness of the lay opinion testimony presented in this

case.   As Professor Graham explains, "The fact that an opinion or

inference is not objectionable because it embraces the ultimate

issue does not mean, however, that all opinions embracing the

ultimate issue must be admitted, for the criterion of helpfulness

is applicable to both lay and expert witnesses alike."   M.

Graham, Cleary & Graham's Handbook of Illinois Evidence §704.1,

at 585 (8th ed. 2004).

           Additionally, lay opinion testimony, like all other

evidence, must also be relevant to be admissible.   As this court

explained in Maffett v. Bliss, 329 Ill. App. 3d 562, 574, 771

N.E.2d 445, 455-56 (2002), one of the tests that a trial court

may use when evaluating relevance is to ask how it would view the


                              - 10 -
evidence if it were the trier of fact.    That is--would the

proposed evidence assist the court in resolving questions of

fact?   If not, then the evidence should be excluded.

           In People v. Novak, 163 Ill. 2d 93, 102, 643 N.E.2d

762, 767 (1994), abrogated on other grounds by People v. Kolton,

219 Ill. 2d 353, 848 N.E.2d 950 (2006), the Supreme Court of

Illinois discussed the admissibility of lay witness opinion

testimony as follows:

                "Lay witness opinion testimony is admis-

           sible where the facts could not otherwise be

           adequately presented or described to the fact

           finder in such a way as to enable the fact

           finder to form an opinion or reach an intel-

           ligent conclusion.   Lay witnesses may relate

           their opinions or conclusions on what they

           observed because it is sometimes difficult to

           describe a person's mental or physical condi-

           tion, character[,] or reputation, or the

           emotions manifest by his or her acts; or

           things that occur and can be observed, in-

           cluding speed, appearance, odor, flavor, and

           temperature."

Professor Graham has set forth the following helpful analysis:

                "A clear line between fact and opinion


                                - 11 -
          is impossible to draw.    In a sense all testi-

          mony to matters of fact is the conclusion of

          the witness formed from observed phenomena

          and mental impressions.    Witnesses who are

          accustomed in speaking to include opinions in

          describing events often find any line diffi-

          cult to draw.   It is more helpful to the jury

          to hear such a witness speak naturally than

          to have him harried by objections that he is

          improperly giving his opinion."    M. Graham,

          Cleary & Graham's Handbook of Illinois Evi-

          dence §701.1, at 516-17 (8th ed. 2004).

          Another way of evaluating the admissibility of lay

opinion testimony is to observe that it is admissible when the

witness would have difficulty explaining the facts upon which the

opinion or inference is based, or where the opinion is of a

condition that the witness could not easily describe.     For

example, in People v. Gill, 355 Ill. App. 3d 805, 808-09, 825

N.E.2d 339, 342 (2005), this court concluded that the trial court

did not abuse its discretion by determining that two State

witnesses properly used the term "resisting" in a resisting-

arrest case when they answered an open-ended question about what

actions they observed.    We noted that the witnesses used the term

resisting "in a common, descriptive manner, not as a legal


                               - 12 -
conclusion."   Gill, 355 Ill. App. 3d at 809, 825 N.E.2d at 342-

43.

          We note that a threshold requirement for the admission

of expert testimony is that the proffered testimony be of assis-

tance to the trial court or jury.    People v. Henderson, 171 Ill.

2d 124, 157, 662 N.E.2d 1287, 1304 (1996).    As Professor Graham

has noted, the same standard applies to the admission of lay

opinion testimony.   See, for example, People v. Jones, 241 Ill.

App. 3d 228, 232, 608 N.E.2d 953, 956 (1993) (in which the court

held that a lay witness may testify in the form of an opinion

only if the testimony is helpful to a clear understanding of the

witness's testimony or the determination of a fact in issue;

noting that like the admission of expert opinion testimony, the

matter is left to the trial court's discretion); People v.

Armstrong, 183 Ill. 2d 130, 156-57, 700 N.E.2d 960, 972 (1998)

(in which the supreme court concluded that the trial court did

not abuse its discretion by permitting a lay witness to express

his opinion--namely, that he had never seen a disciplinary record

worse than the defendant's).

          In this case, in the absence of any objection to the

opinion of Griffin and Davis, the trial court had no opportunity

to exercise its discretion.    We thus decline to conclude, as a

matter of law, that no error occurred in the admission of this

lay opinion testimony.   Accordingly, we will analyze the issue


                               - 13 -
under the plain-error doctrine.

                       C. Plain-Error Doctrine

          In People v. Herron, 215 Ill. 2d 167, 178-79, 830

N.E.2d 467, 475 (2005), our supreme court discussed the plain-

error doctrine, as follows:

               "The plain-error doctrine, as it has

          developed in Illinois, allows a reviewing

          court to reach a forfeited error affecting

          substantial rights in two circumstances.

          First, where the evidence in a case is so

          closely balanced that the jury's guilty ver-

          dict may have resulted from the error and not

          the evidence, a reviewing court may consider

          a forfeited error in order to preclude an

          argument that an innocent person was wrongly

          convicted.   [Citations.]     Second, where the

          error is so serious that the defendant was

          denied a substantial right, and thus a fair

          trial, a reviewing court may consider a for-

          feited error in order to preserve the integ-

          rity of the judicial process.      [Citations.]

          This so-called disjunctive test does not

          offer two divergent interpretations of plain

          error, but instead two different ways to


                               - 14 -
          ensure the same thing--namely, a fair trial."

The Herron court also stated as follows:

               "We reiterate:    the plain-error doctrine

          bypasses normal forfeiture principles and

          allows a reviewing court to consider

          unpreserved error when either (1) the evi-

          dence is close, regardless of the seriousness

          of the error, or (2) the error is serious,

          regardless of the closeness of the evidence.

          In the first instance, the defendant must

          prove 'prejudicial error.'     That is, the

          defendant must show both that there was plain

          error and that the evidence was so closely

          balanced that the error alone severely

          threatened to tip the scales of justice

          against him.   The State, of course, can re-

          spond by arguing that the evidence was not

          closely balanced, but rather strongly

          weighted against the defendant.     In the sec-

          ond instance, the defendant must prove there

          was plain error and that the error was so

          serious that it affected the fairness of the

          defendant's trial and challenged the integ-

          rity of the judicial process."     Herron, 215


                                - 15 -
          Ill. 2d at 186-87, 830 N.E.2d at 479-80.

See also People v. Keene, 169 Ill. 2d 1, 17, 660 N.E.2d 901, 909-

10 (1995) ("Plain error marked by 'fundamental [un]fairness'

occurs only in situations which 'reveal breakdowns in the adver-

sary system,' as distinguished from 'typical trial mistakes'

[Citation.]").

             In accordance with these principles, we conclude that

the admission of the lay opinion testimony in this case falls far

short of constituting plain error.      In so concluding, we first

note that the evidence was not closely balanced but was, instead,

strongly weighted against defendant.      In particular, the evidence

showed that (1) immediately prior to arriving at the residence,

defendant purchased gasoline and a lighter; (2) defendant was

angry and yelling at Griffin; (3) defendant poured gasoline on

Griffin; (4) defendant attempted to ignite Griffin with the

lighter; (5) defendant physically attacked and choked Griffin;

and (6) defendant's version of events was incredible.

          Defendant attempts to make much of his acquittal of

attempt (first degree murder) concerning Davis.      He contends that

this demonstrates the closeness of the evidence, but we are not

persuaded.   Instead, given that the State needed to prove beyond

a reasonable doubt that defendant specifically intended to kill

Davis when he was splashing the gasoline, the jury could conceiv-

ably have found on this evidence that his splashing of gasoline


                               - 16 -
on Davis was inadvertent and collateral to his real purpose and

intent, which was to douse Griffin in gasoline and ignite her.

           Further, we note that any alleged error in allowing the

testimony was not so serious that it affected the fairness of

defendant's trial or challenged the integrity of the judicial

process.   In light of the other evidence, it is hard to imagine

what defendant's intent could have been other than to kill

Griffin, and, thus, Griffin and Davis merely stated the obvious.

Defendant speculates that he could have been attempting merely to

frighten Griffin and Davis by dousing them with gasoline.

However, this alternative theory is unavailing, given the evi-

dence that defendant attempted to ignite the gasoline with a

lighter that he just purchased with the gasoline.

           Accordingly, we conclude that the plain-error doctrine

does not apply here.

           As a final matter, we note that defense counsel's

failure to object to the complained-of testimony may well have

been the result of a sound trial strategy.   Experienced trial

lawyers understand that they should object not just when a

question may be technically objectionable, but when the question

and answer may be damaging to their case.    Given the overwhelm-

ingly compelling nature of the inference regarding defendant's

intent, defense counsel may have opted not to object to this

testimony, either because objecting would serve to highlight the


                              - 17 -
testimony or to give the jury the impression that counsel was

seeking to obstruct proceedings.

            Nor do we mean to criticize the trial court.   After

all, absent exceptional and compelling circumstances, a trial

court is not expected to intrude itself into the proceedings,

absent an objection, when a witness is testifying.    In our

adversarial system, the trial court should remain neutral between

the parties and may appropriately depend upon opposing counsel to

object if counsel believes some impropriety is occurring regard-

ing that testimony.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State's request

that defendant be assessed $50 as costs for this appeal.     55 ILCS

5/4-2001(a) (West 2004); see also People v. Smith, 133 Ill. App.

3d 613, 620, 479 N.E.2d 328, 333 (1985), citing People v.

Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194, 199 (1978).

            Affirmed.

            APPLETON and McCULLOUGH, JJ., concur.




                               - 18 -
