                                        2015 IL App (3d) 130064

                                 Opinion filed April 7, 2015
     _____________________________________________________________________________

                                                 IN THE

                                  APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF ILLINOIS, )                   Appeal from the Circuit Court
                                          )                   of the 14th Judicial Circuit,
          Plaintiff-Appellee,             )                   Henry County, Illinois.
                                          )
           v.                             )                   Appeal No. 3-13-0064
                                          )                   Circuit No. 12-CF-22
                                          )
     LIRIDON GASHI,                       )                   Honorable
                                          )                   Ted J. Hamer
          Defendant-Appellant.             )                  Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE LYTTON delivered the judgment of the court, with opinion.
           Presiding Justice McDade specially concurred, with opinion.
           Justice Schmidt concurred in part and dissented in part, with opinion.
     ________________________________________________________________________

                                                OPINION

¶1          Defendant Liridon Gashi was convicted of two counts of aggravated criminal sexual

     abuse following a jury trial. The trial court sentenced defendant to 24 months of conditional

     discharge. Defendant appeals, arguing that he was denied a fair trial because the trial court (1)

     told jurors that they could decide what “reasonable doubt” means, and (2) failed to ask

     prospective jurors if they understood and accepted each of the principles set forth in Illinois

     Supreme Court Rule 431(b) (eff. July 1, 2012).          We agree that the trial court committed
     reversible error by telling jurors that they could decide for themselves what “reasonable doubt”

     means. We reverse and remand.

¶2                                                FACTS

¶3          In January 2012, the State charged defendant, a 24-year-old, with six counts of

     aggravated criminal sexual abuse. 720 ILCS 5/12-16(d) (West 2010). Counts I, III and V of the

     information alleged that defendant inserted his finger into the vagina of M.G.S., a 16-year-old,

     between November 2011 and December 2011. Counts II, IV, and VI alleged that defendant

     fondled M.G.S.’s breasts during the same time period. Defendant pled not guilty. The case

     proceeded to a jury trial.

¶4          During voir dire, the trial judge stated that defendant was presumed innocent, and then

     asked the potential jurors, “Is there anybody that disagrees with that?” After noting that no one

     raised a hand, the judge continued: “Before Mr. Gashi can be convicted – in other words, found

     guilty – the State of Illinois through [the prosecutor], must prove him guilty beyond a reasonable

     doubt. Is there anybody that has any difficulty with that?” When no one raised a hand, the judge

     continued:

                    “Beyond a reasonable doubt is the highest standard of proof. It’s the same

            burden in every courtroom throughout the United States. And I’ll also tell you

            this: At the end of the case, you’re going to get jury instructions on the law, but

            you will not get a definition of beyond a reasonable doubt. That is for you to

            determine.

                    Mr. Gashi is not required to offer any evidence on his behalf. In other

            words, he does not have to testify. He does not have to have [his attorney] ask




                                                     2
            questions. He does not have to call any witnesses on his behalf. Is there anybody

            that has difficulty with that?

                    Let the record reflect that no one raised their hand.

                    Mr. Gashi also does not have to testify in this case, and you are not to hold

            that against him in arriving at your verdict if he does not testify. In other words,

            you can’t say, well, he didn’t testify, he must be guilty because he didn’t testify.

            That’s not the way it works. You are not to hold that against him in any way. Is

            there anybody that has any difficulty with that?

                    Let the record reflect that no one raised their hand.”

¶5          After the jury was selected but before the trial began, the trial judge stated: “As I said

     earlier today, you will decide what reasonable doubt is.          There’s not going to be a jury

     instruction that explains it to you. It is what it is, beyond a reasonable doubt.”

¶6          Defendant’s trial then began with the testimony of M.G.S., who testified that she worked

     with defendant at Parkway Grill in 2011, when she was 16 years old. He was a cook, and she

     was a waitress. She and defendant began texting each other in September “and started a physical

     relationship [in] late October, early November” of 2011. In one of her texts, she told defendant

     that she was 16 years old. She and defendant talked once about their relationship being illegal

     because of her age. M.G.S. could not recall the specifics of that conversation.

¶7          M.G.S. and defendant kissed approximately five or six times in the back hallway and just

     outside the back door of Parkway Grill from late October to early November. In mid-November

     2011, defendant began touching her breasts and vagina under her clothing. She estimated that

     defendant touched her breasts and vagina approximately 5 to 15 times between mid-November to




                                                       3
       mid-December 2011. He inserted his finger in her vagina five to eight times during that time

       period. These activities took place at Parkway Grill and defendant’s apartment.

¶8            In December 2011, Jan Stohl, the mother of one of M.G.S.’s friends, found out what

       defendant was doing and confronted M.G.S., defendant and the owner of Parkway Grill. After

       that, M.G.S. told her mother what defendant had been doing. Her mother took her to the police

       station to file a police report. The last time defendant touched M.G.S. was approximately a week

       before she went to the police station.

¶9            M.G.S. testified that her relationship with defendant was secret by “[d]esign.” She and

       defendant never went out in public together. In Illinois, people tell M.G.S. that they think she

       looks older than she is. In Missouri, where M.G.S. now lives, people tell her that she looks

       younger than she is.

¶ 10          Jan Stohl testified that she has known M.G.S. since she was “about six months old.”

       Stohl’s daughter and M.G.S. were friends. In mid-December 2011, Stohl learned that M.G.S.

       was having an improper relationship with defendant, so she went to Parkway Grill and spoke to

       the owner of the restaurant, defendant and M.G.S.        Stohl asked defendant if he knew his

       relationship with M.G.S. was illegal. Defendant responded, “yes,” and said he understood.

       When Stohl asked defendant if he knew he could go to jail for what he did to M.G.S, defendant

       answered, “yes,” he did know that but said “I’m not going to jail.”         According to Stohl,

       defendant also apologized and said he “knew that it was wrong.”

¶ 11          Stohl testified that her conversation at Parkway Grill lasted approximately 15 to 20

       minutes. During that time, she repeatedly stated that defendant’s actions were wrong and illegal.

       She also repeatedly asked defendant if he knew that his actions were wrong and illegal. Every

       time she asked defendant that question, he said that he knew it was illegal and that he was sorry.


                                                       4
       She admitted that she was talking quickly at the beginning of the conversation but slowed down

       as she became calmer. Defendant seemed to understand what she was saying during the entire

       conversation.

¶ 12          Steve Whittington, a police officer for the City of Geneseo, testified that he and another

       officer, Tim Wise, interviewed defendant at the police station on January 18, 2012. A DVD of

       that interview was played for the jury. In that interview, defendant stated he is from Kosovo and

       has lived in the United States for three years. He learned English while living in Kosovo.

       Defendant said that he had known M.G.S. for five to seven months. He admitted kissing her a

       few times in his car and his apartment. He also admitted that he touched her breasts and inserted

       his finger in her vagina one time at his apartment. When Officer Whittington asked defendant if

       he knew how old M.G.S. was, he said, “After we did that, then I knew exactly how old she is.”

       He never considered M.G.S. to be his girlfriend but said that he would want to be M.G.S.’s

       boyfriend “[i]f she’s over 18.”

¶ 13          After the State presented its witnesses, defendant moved for a directed verdict, which the

       trial court denied. Defendant then testified that he did not find out that M.G.S. was 16 years old

       until January 18, 2012, when he went to the police station, and Officer Whittington told him. He

       denied ever texting M.G.S. about his age or anything else. He testified that it was “not possible”

       for him to know that M.G.S. was 16 years old because “she looks more mature than her age.”

       He thought M.G.S. was between 17 1/2 and 18 years old because she was a waitress, and he

       believed that waitresses had to be 18 or older.

¶ 14          Defendant testified that when Stahl confronted him at Parkway Grill, she was talking fast,

       and he had difficulty understanding everything she was saying. He testified that he did not know

       what “jail” meant until the day he went to the police station. He testified that “[e]verything that


                                                         5
       happened with [M.G.S.] happened only twice.” He testified that he touched M.G.S.’s breasts

       over her shirt once to push her away when she tried to kiss him. After that, he put his hand under

       M.G.S.’s shirt and bra and touched her breasts one time in his apartment. He testified that he

       touched her vagina only over her pants. He admitted that he told the officers that he inserted his

       finger in M.G.S.’s vagina but said he thought that meant he touched “her vagina even though my

       hand was on the – on the pants.”

¶ 15          After defendant’s testimony, the jury was excused until the following day. The next

       morning, the jury was given instructions and heard closing arguments. By early that afternoon,

       the jury had reached a verdict. The jury found defendant guilty of two counts of aggravated

       criminal sexual abuse (counts I and II of the information). 720 ILCS 5/12-16(d) (West 2010).

       The trial court sentenced defendant to 24 months of conditional discharge.

¶ 16                                                    I

¶ 17          Defendant first argues that the trial judge committed reversible error by telling jurors that

       they could “decide” and “determine” the meaning of “reasonable doubt” for themselves.

¶ 18          It is well settled that courts in this state should refrain from attempting to define

       “reasonable doubt.” People v. Speight, 153 Ill. 2d 365, 374 (1992); People v. Flynn, 378 Ill. 351,

       356 (1941); People v. Johnson, 317 Ill. 430, 436 (1925). This is because the concept of

       “reasonable doubt” is self-explanatory; it “needs no explanation.” People v. Garcia, 103 Ill.

       App. 3d 779, 784 (1981); Flynn, 378 Ill. at 356; Johnson, 317 Ill. at 436. “There is no better

       definition of reasonable doubt than the words themselves.” People v. Jenkins, 89 Ill. App. 3d

       395, 398 (1980). Providing a definition of reasonable doubt is more likely to confuse a jury than

       clarify its meaning. Johnson, 317 Ill. at 436.




                                                        6
¶ 19          Illinois appellate courts disagree about whether it is permissible for a trial judge to tell

       jurors that they can decide for themselves what reasonable doubt means. See People v. Thomas,

       2014 IL App (2d) 121203, ¶ 47 (permissible); People v. Downs, 2014 IL App (2d) 121156, ¶ 28

       (impermissible); People v. Johnson, 2013 IL App (1st) 111317, ¶ 54 (permissible); People v.

       Franklin, 2012 IL App (3d) 100618, ¶ 28 (impermissible); People v. Turman, 2011 IL App (1st)

       091019, ¶ 25 (impermissible).

¶ 20          The first Illinois court to address the issue was the First District. See Turman, 2011 IL

       App (1st) 091019. In Turman, after several hours of deliberating, the jurors asked the trial judge

       for a “ ‘more explicit, expansive definition of reasonable doubt.’ ” Id. ¶ 19. The trial judge

       responded, “ ‘[R]easonable doubt is not defined under Illinois law.         It is for the jury to

       collectively determine what reasonable doubt is.’ ” Id. The First District ruled that the trial

       court erred in giving this explanation of reasonable doubt to the jury. Id. ¶ 25. The court stated

       that “[b]y instructing the jurors that they should collectively determine what reasonable doubt

       was, the court allowed the jury to use a standard that in all likelihood was below the threshold of

       a reasonable doubt standard.” Id.

¶ 21          Our court was the next to rule that a trial court erred in instructing potential jurors that

       they could define “reasonable doubt” for themselves. Franklin, 2012 IL App (3d) 100618. In

       Franklin, the trial judge instructed venire members: “ ‘Beyond a reasonable doubt means beyond

       a reasonable doubt. It’s what each of you individually and collectively, as 12 of you, believe is

       beyond a reasonable doubt.’ ” Id. ¶ 4. We held that the court’s attempt to explain reasonable

       doubt was improper because there is no better definition of reasonable doubt than the words

       themselves. Id. ¶ 25. We further held that “by telling jurors that it was for them to collectively

       determine what reasonable doubt meant, there is a reasonable likelihood that the jurors


                                                       7
       understood the instruction to allow a conviction based on proof less than a reasonable doubt.”

       Id. ¶ 28 (citing Turman, 2011 IL App (1st) 091019, ¶¶ 25, 27).

¶ 22          One year later, a panel of the First District different than the panel that decided Turman

       issued a contrary opinion. See Johnson, 2013 IL App (1st) 111317. In Johnson, the trial court

       told potential jurors during voir dire that “ ‘proof beyond a reasonable doubt’ ” is “ ‘not defined

       by the Supreme Court or by the State legislature’ ” but is “ ‘something for you to decide.’ ” Id.

       ¶ 52. The First District reasoned that the trial court’s statements did not constitute error because

       the judge also told potential jurors that “ ‘[p]roof beyond a reasonable doubt is the highest

       burden that there is at law in Illinois and the United States.’ ” Id. ¶¶ 52-54.

¶ 23          The Second District has also issued conflicting decisions regarding whether a trial court

       can instruct jurors to define reasonable doubt for themselves. See Downs, 2014 IL App (2d)

       121156; Thomas, 2014 IL App (2d) 121203. In Downs, the jury sent the trial judge a note during

       deliberations and asked, “ ‘What is your definition of reasonable doubt, 80%, 70%, 60%?’ ”

       Downs, 2014 IL App (2d) 121156, ¶ 17. The court responded, “ ‘We cannot give you a

       definition[;] it is your duty to define.’ ” Id. Relying on the First District’s decision in Turman

       and our decision in Franklin, the Second District ruled that the trial court’s response

       impermissibly instructed the jurors that they could collectively define reasonable doubt. Id. ¶ 27.

       The court also found that there was “manifest” danger that the jury might have used a standard

       less than reasonable doubt since the jury’s question suggested that it was considering using a

       lower standard. Id. ¶ 28.

¶ 24          Just a few months later, the Second District issued its decision in Thomas, 2014 IL App

       (2d) 121203. In that case, jurors sent the trial judge a note during deliberations asking, “ ‘[W]hat

       is the legal definition of reasonable doubt?’ ” Id. ¶ 14. In a written note, the judge responded,


                                                         8
       “ ‘It is for you to determine ***.’ ” Id. The Second District found that the trial court’s “response

       was unquestionably correct” and “a correct statement of Illinois law.” Id. ¶ 47. However,

       Justice Hudson, specially concurring, found that telling jurors that reasonable doubt “ ‘is for you

       to decide’ ” is risky because it “could be read as vesting a jury with the discretion to interpret the

       term to mean whatever it wants it to mean.” Id. ¶ 56 (Hudson, J., specially concurring).

¶ 25          Here, where the trial court told jurors that they could “decide” or “determine” for

       themselves what reasonable doubt means, the court committed error. See Turman, 2011 IL App

       (1st) 091019, ¶ 25. However, defendant did not object or raise this issue in a posttrial motion, so

       it is waived unless defendant can establish plain error. See Franklin, 2012 IL App (3d) 100618,

       ¶ 22. A “defective reasonable doubt instruction” constitutes a structural error under the second

       prong of the plain-error doctrine that requires reversal and remand for a new trial. See id. ¶ 23.

       A constitutionally deficient reasonable doubt instruction is one that does not correctly convey the

       concept of reasonable doubt and creates a reasonable likelihood that the jury understood the

       instruction to allow them to find the defendant guilty based on a standard of proof less than

       beyond a reasonable doubt. Id.; Victor v. Nebraska, 511 U.S. 1, 5 (1994).

¶ 26          A judge’s statement to potential jurors that they are free to “decide what reasonable doubt

       is” implies “that there is an extraordinarily broad range of possible meanings” for the concept of

       “reasonable doubt,” some of which may be unconstitutional. See Wansing v. Hargett, 341 F.3d

       1207, 1214 (10th Cir. 2003). Such a statement makes “it reasonably likely that the jury would

       overestimate the amount of latitude it had in defining the reasonable doubt standard.” Id. at

       1215. It subverts the self-explanatory character of the term and invites the jury to decide the

       definition of “reasonable doubt” for themselves. See id. at 1214. A trial judge sends an




                                                         9
       unconstitutional message by telling jurors that they have discretion to make their own subjective

       determination about what “reasonable doubt” means. See id. at 1215.

¶ 27          The timing of a trial court’s comments about “reasonable doubt” is relevant in

       determining the likelihood that the comments influenced the jury. Id. When the judge makes

       such statements during voir dire and the trial is relatively short, those statements are not “a

       distant memory” when the jury goes to deliberate. Id. Additionally, when the statements are

       made before trial begins “[i]t is likely that the jurors were particularly receptive to the guidance

       they received at that time, when they were thinking about the issues and not overburdened with

       other issues and other instructions.” Id.

¶ 28          Here, the trial judge told potential jurors during voir dire that it was for them to

       determine what reasonable doubt is. Later, after the jury was chosen but before trial began, the

       judge reiterated that the jurors “decide what reasonable doubt is.” These statements sent an

       unconstitutional message to jurors that they had discretion to determine what “reasonable doubt”

       means. See id. at 1214. These statements likely influenced the jury because they were made just

       one day before the jury reached its verdict, making the statements fresh in the jurors’ minds

       when they deliberated. See id. They were also made at a time when the jurors were likely

       receptive to the court’s guidance because the trial had not yet begun and they were not

       overburdened by other issues or instructions. See id. Based on the totality of the circumstances,

       there is a reasonable likelihood that the jury understood the trial court’s statements to allow them

       to find defendant guilty based on a standard of proof that was less than beyond a reasonable

       doubt. Thus, we reverse and remand for a new trial.




                                                       10
¶ 29          Although not binding on retrial, the evidence in this case was sufficient to prove

       defendant guilty beyond a reasonable doubt, so double jeopardy does not bar retrial. See People

       v. Junior, 349 Ill. App. 3d 286, 293 (2004).

¶ 30                                                     II

¶ 31          Defendant also argues that the trial court committed reversible error by failing to ask

       prospective jurors whether they understood all of the principles set forth set forth in Rule 431(b).

¶ 32          This is a question of law we review de novo. People v. Belknap, 2014 IL 117094, ¶ 41.

       Defendant did not object or raise this issue in a posttrial motion; therefore, any claimed error

       must be the subject of plain-error analysis. See People v. Wilmington, 2013 IL 112938, ¶ 31.

       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. Id.

¶ 33          The first step of plain-error analysis is to consider whether an error occurred. See id.

       Rule 431(b) provides:

                  “(b) The court shall ask each potential juror, individually or in a group,

              whether that juror understands and accepts the following principles: (1) that the

              defendant is presumed innocent of the charge(s) against him or her; (2) that before

              a defendant can be convicted the State must prove the defendant guilty beyond a

              reasonable doubt; (3) that the defendant is not required to offer any evidence on

              his or her own behalf; and (4) that if a defendant does not testify it cannot be held

              against him or her; however, no inquiry of a prospective juror shall be made into


                                                        11
              the defendant’s decision not to testify when the defendant objects.” Ill. S. Ct. R.

              431(b) (eff. July 1, 2012).

¶ 34           “[T]he language of Rule 431(b) is clear and unambiguous ***.” People v. Belknap,

       2014 IL 117094, ¶ 45. It requires trial courts to ask prospective jurors whether they both

       understand and accept the four principles set forth in the rule. Id. ¶ 46. “The failure to do so

       constitutes error.” Id. ¶ 45 (citing People v. Thompson, 238 Ill. 2d 598, 607 (2010)).

¶ 35          Here, the trial court asked potential jurors if any of them “disagreed with” the first

       principle and had “difficulty with” the remaining three principles. Asking potential jurors if they

       have “difficulty with” a principle encompasses both understanding and acceptance because a

       person who does not understand or accept a principle would have “difficulty with” it. People v.

       Ware, 407 Ill. App. 3d 315, 356 (2011). Asking venire members if they “disagree with” a

       principle may be tantamount to asking whether they accept it; however, it does not satisfy Rule

       431(b)’s requirement that the court also inquire whether potential jurors understand the principle.

       Belknap, 2014 IL 117094, ¶ 46; Wilmington, 2013 IL 112938, ¶ 32. In this case, the trial court

       failed to ask the jurors whether they understood the first principle. Thus, the court committed

       error. See id.

¶ 36           Now we must determine if the error necessitates reversal pursuant to the plain-error rule.

       Rule 431(b) errors are not structural errors under the second prong of the plain-error analysis.

       See Belknap, 2014 IL 117094, ¶ 47; Wilmington, 2013 IL 112938, ¶ 33. Thus, defendant is

       entitled to reversal only if he satisfies the first prong of the plain-error doctrine: that the

       evidence is so closely balanced that the error alone threatened to tip the scales of justice against

       him. See Wilmington, 2013 IL 112938, ¶ 34. In reviewing a claim under the first prong of the




                                                       12
       plain-error doctrine, the reviewing court “must make a commonsense assessment of the evidence

       within the context of the circumstances of the individual case.” Belknap, 2014 IL 117094, ¶ 52.

¶ 37          A person “commits aggravated criminal sexual abuse if he or she commits an act of

       sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17

       years of age and the accused was at least 5 years older than the victim.” 720 ILCS 5/12-16(d)

       (West 2010). “It shall be a defense under *** subsection (d) of Section 12-16 of this Code that

       the accused reasonably believed the person to be 17 years of age or over.” 720 ILCS 5/12-17

       (West 2010).

¶ 38          Here, both M.G.S. and defendant consistently testified that defendant touched M.G.S.’s

       breasts. M.G.S. also testified that defendant inserted his finger in her vagina. While defendant

       testified at trial that he only touched M.G.S.’s vagina outside of her clothes, during his interview

       with Whittington and Wise, he admitted inserting his finger in her vagina. Thus, the evidence

       that defendant committed acts of sexual penetration and sexual conduct against M.G.S. was not

       closely balanced.

¶ 39          The evidence that defendant did not reasonably believe M.G.S. was 17 years of age or

       older was also not closely balanced. Defendant testified at trial and told Whittington and Wise

       that he did not know M.G.S. was under 17 years old when he touched her and only learned that

       she was 16 years old when the officers told him. However, M.G.S. testified that she told

       defendant her age before their relationship became “physical.” She further testified that she and

       defendant talked about the illegality of their relationship, which is why they kept it a secret.

       Further, Stohl testified that defendant acknowledged that his relationship with M.G.S. was illegal

       and could cause him to go to jail.




                                                       13
¶ 40          Because the evidence in this case was not closely balanced, defendant is not entitled to

       reversal under either prong of the plain-error doctrine because of the trial court’s failure to

       strictly comply with the Rule 431(b) requirements. See Wilmington, 2013 IL 112938, ¶ 34.

¶ 41                                            CONCLUSION

¶ 42          The judgment of the circuit court of Henry County is reversed, and the cause is remanded

       for further proceedings.

¶ 43          Reversed and remanded.

¶ 44          PRESIDING JUSTICE McDADE, specially concurring.

¶ 45          I agree with and concur in (1) the finding that the trial court committed reversible error

          by telling jurors that they could decide for themselves what "reasonable doubt" means and

          (2) in the decision to reverse and remand.

¶ 46          I write separately to note that we have recently considered several cases raising this same

          issue, and it strikes me that the problem may arise because we are conflating two concepts

          which ought, in fact, to remain separate. One is the meaning of reasonable doubt and the

          second is the jury's duty to determine whether any doubt they have about the defendant's guilt

          is reasonable.

¶ 47          The jury is told, quite properly, that there is no definition for the term "reasonable doubt."

          I believe that impropriety arises when they are then told that it is for them to determine what

          reasonable doubt means or is. That would appear to be an invitation for the jurors to define

          what is otherwise purposely undefined.

¶ 48          In reality, what we want them to do is assess all of the evidence and evaluate the

          credibility of the witnesses and then decide whether any doubt they may feel about the

          defendant's guilt is reasonable.

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¶ 49           I wonder if an instruction along the following lines, if approved, might be helpful:

                       "Reasonable doubt is not defined and it is not for you to define it.

                       Rather, it is the duty of each of you to assess all of the evidence

                       and evaluate the credibility of the witnesses and then decide

                       whether any doubt you may feel about the defendant's guilt is

                       reasonably supported by what the evidence has or has not shown or

                       is an unwarranted or unreasonable stretch."

¶ 50           JUSTICE SCHMIDT, concurring in part and dissenting in part.

¶ 51           I concur in the majority’s decision that the evidence in this case was not closely balanced

       and the trial judge’s failure to strictly comply with Rule 431(b) requirements is not plain error

       and, therefore, not reversible. I dissent from that portion of the opinion that reverses the

       defendant’s conviction based upon the trial judge’s statements regarding reasonable doubt. As

       the majority correctly notes, the United States Supreme Court has explained that the proper

       inquiry is not whether a reasonable doubt instruction could have been applied in an

       unconstitutional manner, but whether there is a reasonable likelihood that the jury did so apply it.

       Supra ¶ 25; Victor v. Nebraska, 511 U.S. at 5; Estelle v. McGuire, 502 U.S. 62, 72 (1991).

¶ 52           The majority incorrectly characterizes the trial judge's comments about reasonable doubt

       as “[telling] jurors that they could ‘decide’ or ‘determine’ for themselves what reasonable doubt

       means.” Supra ¶ 25. As the Supreme Court made clear in Victor, the language in an instruction

       “cannot be sequestered from its surroundings.” Victor v. Nebraska, 511 U.S. at 16. Here, again,

       the trial judge stated:

                          “Before Mr. Gashi can be convicted — in other words, found

                   guilty — the State of Illinois, through Mr. Patten, must prove him


                                                        15
                   guilty beyond a reasonable doubt. Is there anybody that has any

                   difficulty with that?

                         Beyond a reasonable doubt is the highest standard of proof. It’s

                   the same burden in every courtroom throughout the United States.

                   And I’ll also tell you this: At the end of the case, you’re going to get

                   jury instructions on the law, but you will not get a definition of beyond

                   a reasonable doubt. That is for you to determine.”

       After the jury was selected but before the trial began, the trial judge stated:

                        “As I said earlier today, you will decide what beyond a reasonable

                        doubt is. There's not going to be a jury instruction that explains

                        that to you. It is what it is, beyond a reasonable doubt.”

¶ 53           Looking at the trial judge’s comments as a whole, as the Supreme Court says we must,

       there is nothing that should lead a reasonable person to conclude there is a reasonable likelihood

       that the jury understood these comments to allow conviction based on anything other than proof

       beyond a reasonable doubt. There is no reasonable likelihood that the jurors who determined

       defendant’s guilt applied the court’s comments in a way that violated the Constitution. See

       Victor, 511 U.S. at 22-23. The trial court explained the State’s burden of proof was “the highest

       standard of proof” as “in every courtroom throughout the United States.” When further

       explaining that there would be no formal instruction on reasonable doubt, the court explained, “It

       is what it is, beyond a reasonable doubt.” It is a mystery to me as to how any person, reasonable

       or otherwise, could construe the judge’s comments as an invitation to convict on an

       unconstitutional standard. Yet, the majority concludes that not only could the jury have done so,

       it likely did.


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¶ 54          Further, the trial court’s statement is a correct statement of the law. Query: If the court

       will not define reasonable doubt, who is left to do so? There is only one possible answer: the

       jury. I believe that the Second District got it right in People v. Thomas, 2014 IL App (2d)

       121203. The majority finds comfort in Justice Hudson's special concurrence in which he opined

       that the language “ ‘could be read as vesting a jury with the discretion to interpret the term to

       mean whatever it wants it to mean.’ ” Supra ¶ 24 (quoting People v. Thomas, 2014 IL App (2d)

       121203, ¶ 56 (Hudson, J., specially concurring)). The majority overlooks two important points.

       Justice Hudson concurred in affirming the trial court. This was undoubtedly because he

       appreciated what the majority does not. That is, point number two. Remember Victor? The

       analysis does not turn on what was possible or what could have happened, but whether there is a

       reasonable likelihood that the jury did convict using an unconstitutional standard. Victor, 511

       U.S. at 5. Notwithstanding his caution to trial judges, Justice Hudson obviously did not believe

       the jury likely did so (ergo, his concurrence) and neither do I.

¶ 55          I would affirm defendant’s conviction.




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