NOTICE 2024 IL App (4th) 230392-U This Order was filed under FILED Supreme Court Rule 23 and is April 3, 2024 NO. 4-23-0392 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County KENNETH D. BRINKLEY, ) No. 22CF40 Defendant-Appellant. ) ) Honorable ) Michael L. Stroh, ) Judge Presiding.
JUSTICE LANNERD delivered the judgment of the court. Justices Harris and Knecht concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding (1) the evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt, (2) the trial court’s failure to strictly comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) did not constitute plain error where the evidence was not closely balanced, (3) the court properly considered the statutory sentencing factors when it sentenced defendant to an aggregate of 13 years in prison, and (4) defendant was not denied the effective assistance of trial counsel.
¶2 In September 2022, defendant, Kenneth D. Brinkley, was convicted of aggravated
driving under the influence (DUI) (625 ILCS 5/11-501(a)(2), (d)(1)(F) (West 2022)), criminal
damage to government supported property (720 ILCS 5/21-1.01(a)(1) (West 2022)), and three
counts of aggravated fleeing or attempting to elude a peace officer (625 ILCS 5/11-204.1(a)(2),
(3) (West 2022)). In February 2023, the trial court sentenced defendant to an aggregate of 13 years
in the Illinois Department of Corrections (DOC). ¶3 Defendant appeals, arguing (1) the evidence was insufficient to prove his guilt
beyond a reasonable doubt, (2) the trial court committed plain error when it failed to comply with
Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (3) the court committed plain error by
declining to consider mercy as a mitigating factor when it sentenced him, and (4) his trial counsel
provided ineffective assistance by failing to preserve errors for review. We affirm.
¶4 I. BACKGROUND
¶5 On April 7, 2022, defendant was charged by indictment with five counts. Count I
alleged aggravated DUI (625 ILCS 5/11-501(a)(2), (d)(1)(F) (West 2022)), in that defendant
knowingly drove a motor vehicle under the influence of alcohol and was involved in a motor
vehicle accident, proximately causing the death of Ryan Pitts, a passenger in defendant’s vehicle.
Count II alleged criminal damage to government supported property (720 ILCS 5/21-1.01(a)(1)
(West 2022)) in that defendant knowingly and without authority damaged a squad car that was
funded by the Woodford County Sheriff’s Office and the damage exceeded $500 but did not
exceed $10,000. Counts III through V alleged aggravated fleeing or attempting to elude a peace
officer (625 ILCS 5/11-204.1(a)(2), (3) (West 2022)) in that defendant drove a motor vehicle upon
a public highway and was fleeing or attempting to elude Deputy Colten Zehr at a time he had been
given an audio or visual signal from Deputy Zehr to stop and said flight caused damage to a squad
car in excess of $300 (count III), bodily injury to Pitts (count IV), and bodily injury to defendant
(count V).
¶6 The charges arose from a police pursuit of a utility task vehicle (UTV) and the
UTV’s collision with a tree, which resulted in the death of Pitts. Defendant presented a defense
that he was not driving the UTV at the time of the accident. Following a jury trial, defendant was
convicted of all five counts.
-2- ¶7 A. Voir Dire
¶8 While conducting voir dire, the trial court explained to the prospective jurors
(1) defendant was presumed innocent of the charges against him, (2) before defendant could be
convicted, the State must prove him guilty beyond a reasonable doubt, (3) defendant was not
required to offer any evidence on his own behalf, and (4) if defendant did not testify, it could not
be held against him. After providing each proposition, the court asked the prospective jurors as a
group to raise their hands if they understood the proposition. The prospective jurors raised their
hands. After each proposition, the court also asked the prospective jurors as a group to raise their
hands if they disagreed with the proposition. No prospective juror raised their hand.
¶9 B. Jury Trial
¶ 10 At defendant’s jury trial, the State presented the testimony of Deputy Dakota Park
and Deputy Zehr of the Woodford County Sheriff’s Office, Trooper Christopher McClenning and
Master Sergeant Bradley Brachear of the Illinois State Police, and Dr. Kurt Piening of OSF
HealthCare. Defendant testified on his own behalf.
¶ 11 1. Deputy Park
¶ 12 Deputy Park testified he worked as a patrol sergeant. On March 15, 2022, he was
working on traffic patrol in his marked patrol vehicle. Around midnight, he observed a UTV
parked at an intersection that gained his interest because it was not typical for those types of
vehicles to be out at that time. The UTV was parked at a stop sign for quite some time, and he
approached to inquire what was going on. As he began to put down his driver’s side window, the
UTV was put into gear and took off. Deputy Park activated his lights and asked Deputy Zehr to
help him stop the UTV. Further, Deputy Park identified defendant as the driver, who was wearing
a red or orange colored shirt. Deputy Zehr notified Deputy Park the UTV had hit his patrol vehicle,
-3- and he was pursuing the UTV. The UTV drove through a field while the deputies drove on the
road. Deputy Park lost visual of the UTV for approximately 45 seconds. Deputy Zehr notified
Deputy Park there had been a vehicle accident. He headed to the crash site, where he observed the
UTV against a tree and defendant in the UTV screaming. He spoke with defendant, who denied
driving the UTV. A video recorded by Deputy Park’s dash camera was admitted into evidence.
¶ 13 On cross-examination, Deputy Park testified the UTV was on its driver’s side post-
crash. He observed Pitts hanging from the roof of the UTV, brain matter on the ground in front of
the roof, and blood on the ground near the brain matter. Deputy Park then asked defendant to get
out of the UTV, and defendant replied he could not move. Deputies Park and Zehr helped
defendant get out of the UTV.
¶ 14 2. Deputy Zehr
¶ 15 Deputy Zehr testified he was primarily a patrol officer. On March 15, 2022, he
responded to a call from Deputy Park, who reported a UTV had taken off away from him. He was
not far from the area and saw lights in a nearby field. Deputy Zehr activated his patrol lights. He
testified defendant was driving the UTV and wearing a bright-colored shirt, which was orange or
red. The UTV drove toward him and hit the front of his squad car. The UTV then drove through a
field while Deputy Zehr was driving on the road parallel to it. As he continued driving forward,
approaching another road, he saw defendant standing up in the UTV and Pitts hunched over the
roof. Defendant complained his arm was broken. Deputy Zehr’s dash camera video was admitted
into evidence. In the video, Deputy Zehr can be heard saying the man wearing black (Pitts) was
driving. After watching the video, Deputy Zehr believed defendant was driving.
¶ 16 3. Trooper McClenning
-4- ¶ 17 Trooper McClenning testified he worked for the traffic crash reconstruction unit,
was certified in traffic crash investigation, and received ongoing training. According to Trooper
McClenning, the physics principles for crash reconstruction remained the same for a UTV. The
State moved to tender Trooper McClenning as an expert in traffic crash reconstruction, and
defendant conducted voir dire. Trooper McClenning testified he received no UTV crash
reconstruction training but explained his analysis still involved objects and he could calculate
speed and distance. Whether the UTV had a roof or doors did not factor into his analysis, just as it
would not for other vehicles. Over defendant’s objection, the trial court allowed Trooper
McClenning to testify as a traffic reconstruction expert.
¶ 18 Trooper McClenning testified, on March 15, 2022, he was called to investigate a
crash involving a UTV. When he arrived at the scene, he talked with the officers to determine the
directions of travel and photographed the scene. He obtained measurements, flew a drone to render
a scale diagram, and collected video from the dash cameras. The videos showed when (1) Deputy
Park encountered the UTV, the driver was wearing an orange shirt and the passenger was wearing
a dark shirt, (2) Deputy Zehr first encountered the UTV and it struck his patrol vehicle, the driver
was wearing an orange shirt, and (3) Deputy Zehr approached the UTV post-crash, defendant was
wearing an orange shirt and climbing out of the top of the UTV.
¶ 19 Trooper McClenning calculated from the videos there were 55 seconds when the
UTV was out of the officers’ view. He used a drone to view tire marks and approximated the UTV
traveled 3109 feet in those 55 seconds at an average speed of 38.55 miles per hour. His
investigation did not indicate the UTV stopped as it drove through the field, and thus, his
calculations did not include a stop. He found the UTV traveled through the field and encountered
an incline, where it became airborne and landed on the road. He estimated the UTV was travelling
-5- 30.87 miles per hour at that time. Tire marks showed the UTV rotated sideways and the passenger-
side tires dug into the grass and acted as a tripping mechanism. The UTV began to roll on its
passenger side onto its roof and finally rested on the driver’s side (three quarters of a complete
roll). The State admitted into evidence a demonstrative exhibit, and McClenning showed the
UTV’s path using a 1/14 scale model.
¶ 20 Trooper McClenning concluded the passenger of the vehicle was partially ejected
as the UTV continued to roll and the passenger’s body was “hung up.” He believed this was why
Pitts’s body was slumped over the roof. He also made note of Deputy Zehr’s video from when he
approached the UTV post-accident. The video showed movement down toward the steering wheel
area and then a man with an orange shirt stood up through the passenger side. He explained the
driver did not get thrown from the vehicle because the passenger’s body would have prevented
that as the UTV was rolling. He also found the windshield and the back window would have
prevented anyone from being ejected in those directions during the rollover. Therefore, he opined
defendant was driving the UTV.
¶ 21 On cross-examination, Trooper McClenning testified it was not possible the driver
and passenger could have switched places during the rollover because, as the UTV rolled,
centrifugal force was taking objects to the outside. However, he noted the driver’s seatbelt was
buckled behind the driver and the passenger’s seatbelt was off and retracted. He clarified his
testimony was not that defendant was seated in the driver’s seat when Deputy Zehr approached
post-accident, but rather, defendant was down in the driver’s area and then stood through the
passenger compartment where he attempted to climb up. All of the discovered blood was found
outside of the UTV. When asked why portions of Pitts’s head and blood were near the front of the
UTV and on the exterior of the driver’s side, he explained when the UTV came to a rest on the
-6- driver’s side, Pitts was slumped over the roll cage area for a couple of hours and his blood had
drained down.
¶ 22 4. Master Sergeant Brachear
¶ 23 Master Sergeant Brachear testified he was certified in traffic crash investigation
and received ongoing training. He explained an investigation involving a UTV changes some
mechanics, such as a higher potential for rolling due to a higher center of gravity, but occupant
kinematics and the basic functions of the vehicle were very similar to a standard vehicle. The trial
court allowed him to testify as an expert in traffic crash reconstruction. He testified he assisted
Trooper McClenning in confirming the seating positions of the occupants by observing the
direction of rotation, the occupants’ positioning, which direction the occupants would travel during
the rollover, and which way they would be ejected out of the vehicle. He explained when a vehicle
trips, rolls, and comes to a rest, the occupants are moving in the same direction and are not going
to cross paths. He opined defendant was driving the UTV.
¶ 24 5. Dr. Piening
¶ 25 Dr. Piening was established as an expert in the field of emergency medicine. He
examined defendant on the night of the accident and noted defendant was intoxicated. Defendant
told him that he had been riding with a companion in a UTV, the UTV wrecked, and he had been
thrown from it. Defendant could not remember the accident or whether he was restrained.
Defendant suffered a right clavicle fracture and scapular fracture. Dr. Piening opined these types
of injuries were caused by any blunt force trauma to the right shoulder, which could include
holding onto a steering wheel or an arm bar on the passenger side of a vehicle upon impact.
¶ 26 6. Defendant
-7- ¶ 27 Defendant testified he had been best friends with Pitts for about five or six years.
On March 15, 2022, around 5:30 p.m. to 6:30 p.m., defendant went to Pitts’s home, where they
grilled, drank alcohol, and had a bonfire. Pitts asked defendant if he wanted to go for a ride in his
UTV. Defendant accepted Pitts’s offer, and Pitts drove them on back roads until they realized they
were low on gas. Pitts drove them to the gas station. When they departed the gas station, defendant
remained in the passenger seat. Video from the gas station was admitted into evidence. They then
drove into a field and approached a stop sign, where defendant and Pitts switched seats. Defendant
drove forward and approached another stop sign. He saw a vehicle approaching and believed it
was turning, as it was slowing down and the road was a common route. Defendant did not know
the vehicle was a police vehicle. Defendant decided to turn and cut into a field. Once he approached
the end of the field and drove back onto the road, he observed a police vehicle with its lights on.
He pulled out and collided with the police vehicle.
¶ 28 Defendant did not know he collided with the police vehicle until after he noticed
he was being chased by the police. He continued to drive while being chased for about two minutes,
and then he pulled alongside a tree line, where he and Pitts switched seats. Defendant jumped out
of the driver’s seat and ran around the UTV to get into the passenger’s seat. Pitts remained in the
UTV and moved over into the driver’s seat. The plan was to go to Pitts’s parents’ house, where
they would contact Pitts’s girlfriend to pick them up. It was around midnight, and defendant did
not know where Pitts’s parents’ home was located. Pitts drove them through a field at around 30
miles per hour as he approached a road. Defendant noticed they were going fast and spotted an
incline before the road. Defendant used both hands to brace himself on the support bar located on
the passenger’s side of the UTV. Defendant next recalled standing up and seeing Pitts lying over
the roof of the UTV. Defendant was approached by police officers, and he told them he could not
-8- move. The officers pulled him out of the UTV. The officers asked defendant what happened, and
defendant said he was not driving.
¶ 29 On cross-examination, defendant acknowledged the video evidence showed a
police vehicle slowing down to approach him and him driving off. Defendant claimed he did not
see the officer’s lights activate because the UTV’s rearview mirror was missing. As to the second
encounter with a police vehicle, he did not realize he hit the police vehicle because he only brushed
the front. However, he acknowledged he was fairly intoxicated. Defendant stated he wanted to
stop driving the UTV, but Pitts told him to go. The police lost sight of the UTV for about 45
seconds, and defendant claimed during that time he came to a complete stop, switched seats with
Pitts, and the UTV regained speed to make it through the field.
¶ 30 7. Stipulations
¶ 31 The parties made four stipulations: (1) laboratory tests performed at the hospital
following the accident reported defendant’s blood alcohol content was 0.209, (2) defendant had
been previously convicted of a felony offense, (3) Deputy Zehr’s vehicle was owned and
maintained by Woodford County, which sustained $2890.73 in damage, and (4) Pitts’s cause of
death was craniocerebral injuries due to a UTV striking a fixed object, reportedly sustained as the
occupant of the UTV that struck a tree at a high rate of speed.
¶ 32 8. Verdict
¶ 33 After closing arguments and deliberations, the jury found defendant guilty of
aggravated DUI, criminal damage to government supported property, and three counts of
aggravated fleeing or attempting to elude a peace officer.
¶ 34 C. Postjudgment Motions
-9- ¶ 35 Defendant’s counsel filed a motion for leave to withdraw, citing irreconcilable
differences between counsel and defendant. The trial court allowed the motion. Defendant’s new
counsel filed a motion for a judgment notwithstanding the verdict or a new trial. Defendant argued
there was insufficient evidence to support his conviction for aggravated DUI. The court denied the
motion, finding it would not replace the jury’s credibility determinations with its own.
¶ 36 D. Sentencing
¶ 37 The trial court proceeded to sentencing and considered the presentence
investigation report, financial impact statement, arguments presented by the parties, defendant’s
statement in allocution, victims’ statements, and sentencing alternatives. In mitigation, the court
found defendant did not contemplate his criminal conduct would cause or threaten serious physical
harm to another. In aggravation, the court found as follows. Defendant had a history of prior
criminal activity, starting in August 2017. Further, defendant had convictions for criminal damage
to property; domestic battery; violation of an order of protection; criminal trespass to land; DUI,
where he was sentenced to 300 days in jail; robbery, where he was sentenced to three years in
DOC; and criminal damage to government supported property, where he was sentenced to three
years in DOC. Defendant was on mandatory supervised release at the time the offenses in this case
occurred. The court found other courts recognized early on that defendant was in need of either
mental health or alcohol treatment, but defendant’s alcohol use only accelerated, despite
previously receiving sentencing alternatives, which were ultimately revoked. The court found a
prison sentence was necessary in this case to deter others from committing the same crime.
¶ 38 The trial court discussed the concept of mercy and stated, as follows:
“And I am asked in many of the letters that I received from [defendant’s]
friends and family to consider mercy. And I always struggle with that. And I’ve
- 10 - thought long and hard about what mercy means. And everybody has a different
definition. But mercy is not something that I give. That is not my job. Mercy is
something that God gives us. Grace is something that God gives us. My job is to
enforce and uphold the laws of the State of Illinois.
And there’s a statement in the Bible that goes something like *** give unto
Caesar what belongs to Caesar and give unto God what belongs to God. So the
mercy and grace that you seek, [defendant], and that your family seeks for you, that
comes from God. That comes from a higher being than what we are. I as a judge
have to impose the laws of Caesar, so to speak, the State of Illinois.”
¶ 39 Defendant was eligible for 3 to 14 years in DOC, to be served at 85%, for
aggravated DUI, an extended term of 2 to 10 years in DOC for criminal damage to government
supported property, and an extended term of 1 to 6 years in DOC for aggravated fleeing or
attempting to elude a peace officer. Defendant was eligible to serve the sentences concurrently or
consecutively. The trial court found counts III through V for aggravated fleeing or attempting to
elude a peace officer fell within the one-act, one-crime doctrine and merged them into count IV,
pertaining to causing bodily injury to Pitts (625 ILCS 5/11-204.1(a)(2) (West 2022)).
¶ 40 When considering defendant’s prior criminal history, the facts and seriousness of
this case, and the victim impact statements, the trial court found a sentence of imprisonment was
necessary to protect the public. The court sentenced defendant to concurrent sentences of 13 years
in DOC for aggravated DUI, 7 years in DOC for criminal damage to government supported
property, and 3 years in DOC for aggravated fleeing or attempting to elude a peace officer.
¶ 41 Defendant filed a motion to reconsider the sentence, arguing the trial court did not
give sufficient weight to his rehabilitative potential. Specifically, defendant contended his criminal
- 11 - history was associated with alcohol abuse and he took affirmative steps to address it by attending
meetings and church services. The court denied the motion.
¶ 42 This appeal followed.
¶ 43 II. ANALYSIS
¶ 44 Defendant presents three main arguments on appeal. First, defendant contends the
State failed to present sufficient evidence to prove his guilt beyond a reasonable doubt with respect
to his convictions for aggravated DUI and aggravated fleeing or attempting to elude a peace officer.
Second, defendant argues the trial court committed plain error by failing to ask the jurors whether
they accepted the principles enumerated in Rule 431(b). Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
Third, defendant contends the court committed plain error when it refused to consider mercy in
mitigation. Defendant alternatively argues his counsel was ineffective for failing to preserve these
errors for review. We address each argument in turn.
¶ 45 A. Sufficiency of the Evidence
¶ 46 When a defendant challenges the sufficiency of the evidence, a reviewing court
considers, after viewing the evidence in the light most favorable to the prosecution, whether any
rational trier of fact could have found the essential elements of the offense beyond a reasonable
doubt. People v. Jones, 2023 IL 127810, ¶ 28. The trier of fact determines the credibility of the
witnesses, assigns weight to testimony, resolves conflicts in the evidence, and draws reasonable
inferences from that evidence. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009). “We will not
reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory that it
raises a reasonable doubt of defendant’s guilt.” People v. Evans, 209 Ill. 2d 194, 209 (2004).
¶ 47 Both aggravated DUI (625 ILCS 5/11-501(a)(2), (d)(1)(F) (West 2022)) and
aggravated fleeing or attempting to elude a peace officer (id. § 11-204.1(a)(2)) required the State
- 12 - to prove defendant was driving the UTV. Defendant disputes the sufficiency of the evidence as to
the driving element of these offenses. Defendant argues the evidence failed to support the finding
he was driving when the UTV was outside of the officers’ view for 55 seconds as it traversed
through the field and at the time of the accident. In support of his argument, defendant points to
his testimony and statements at the scene where he said he was not the driver, Deputy Zehr’s dash
camera video from the scene where the deputy identified Pitts as the driver, and the testimony of
the crash reconstructionist. The State responds the jury rightfully rejected defendant’s version of
events because his testimony was implausible and unbelievable. The State maintains the evidence
was sufficient to support the convictions.
¶ 48 We first address defendant’s statement at the scene of the accident and his
testimony. Defendant admitted he was driving when Deputy Park first approached and when the
UTV collided with Deputy Zehr’s patrol vehicle. However, defendant testified he switched seats
with Pitts, who was driving the UTV through the field leading up to the crash and when the UTV
crashed. When the police were determining what happened after the accident, defendant told them
he was not driving. Further, defendant argues this post-accident statement is inherently reliable
because it was made without time to reflect and create a different response, and he was so seriously
injured he did not have the ability to fabricate a story.
¶ 49 In considering the evidence in the light most favorable to the State, defendant’s
version of the events arguably has various credibility issues, and the jury was within its right to
reject defendant’s version of events. According to defendant, when he was first approached by
Deputy Parks, he claimed he did not realize the approaching vehicle was a police vehicle, yet he
still drove off in an evasive manner into a field and claimed he did not realize he was being pursued.
Deputy Park’s dash camera video showed how close he was to the UTV, and he activated his lights
- 13 - immediately. Defendant also claimed he did not realize he hit the front of Deputy Zehr’s patrol
vehicle, as he only brushed the front of it. Defendant’s characterization of brushing against the
vehicle versus hitting it is dubious. Deputy Zehr’s dash camera video shows defendant approached
the police vehicle, which had its lights activated, nearly head-on, and there was a loud crash when
the vehicles collided. The stipulated evidence demonstrated the collision resulted in $2890.73 in
damage. Additionally, defendant admitted to continuing to drive for two minutes once he realized
he was being chased.
¶ 50 As to the 55 seconds without video evidence, defendant testified it was during that
time he and Pitts switched places as driver and passenger. Trooper McClenning calculated the
UTV traveled 3109 feet in those 55 seconds at an average speed of 38.55 miles per hour. This
calculation does not consider defendant’s claim that he stopped the UTV and ran around to the
passenger side, Pitts moved over from the passenger’s seat and began driving, and the UTV
regained its speed. If the calculation did consider the stop, the UTV’s average speed would have
been increased to account for the decreased time spent driving. This assertion also calls defendant’s
testimony into question, as he claimed Pitts drove the UTV at around 30 miles per hour. The
evidence additionally demonstrated the UTV rolled onto its passenger side first, which explained
why Pitts, as the passenger, would have been the one ejected out the of the vehicle. Pitts’ position
as the passenger was also consistent with his injuries, as it appeared he was pinched under the
UTV as it rolled, and his blood was not found inside the UTV. Trooper McClenning explained it
would have been very difficult for the driver and passenger to switch places during the rollover,
as they were being pulled in the same direction. Although defendant claimed he was the passenger,
as evinced by his injuries, Dr. Piening testified blunt force trauma to the right shoulder could be
- 14 - caused by holding onto a steering wheel or an arm bar upon impact. Defendant’s own testimony
and the laboratory reports indicate defendant was intoxicated.
¶ 51 When defendant was being treated by Dr. Piening immediately following the
accident, he reported being thrown from the UTV and was unable to remember the crash itself.
However, defendant’s own testimony and Deputy Zehr’s dash camera video showed defendant
was not thrown from the UTV, but rather, he was unable to get out of the UTV without assistance.
The State’s evidence, combined with defendant’s prior felony conviction, may have caused the
jury to question defendant’s believability as a witness.
¶ 52 Defendant heavily relies upon Deputy Zehr’s dash camera video post-accident,
when Deputy Zehr can be heard identifying the man wearing black (Pitts) as the driver. However,
Deputy Zehr later testified he believed defendant was driving the UTV. The record contains no
evidence as to why Deputy Zehr initially believed Pitts was driving the UTV. Regardless, this
discrepancy does not favor defendant’s version of events, where Deputy Zehr’s dash camera video
showed his perspective during his entire interaction with the UTV and never showed Pitts driving.
In other words, even assuming, arguendo, Deputy Zehr testified Pitts was driving the UTV, his
testimony would be at odds with his dash camera video, as it only ever showed defendant driving
the UTV.
¶ 53 Additionally, defendant argues the testimonies of the crash reconstruction experts
were confusing, vague, and incomplete. Defendant asserts Trooper McClenning’s testimony using
the demonstrative exhibit to explain the UTV’s path was vague, with such references as “through
here,” in “this direction,” and “sideways.” Defendant contends the reader cannot objectively verify
what was being said. First, we note the demonstrative exhibit was supplied as a supplement to the
testimony Trooper McClenning had already provided. When taking the testimony as a whole, it
- 15 - provides a full and complete explanation of Trooper McClenning’s findings. Second, any
confusing, vague, or incomplete testimony was a result of the parties’ failure to make a proper
record of what the expert witnesses were pointing at or describing while using the demonstrative
exhibit. The jury, as the trier of fact, had the benefit of viewing the demonstrative exhibit as the
witnesses explained the UTV’s path. We do not have the same benefit due to the parties’ failure
to make a proper record. Defendant, who now challenges the State’s theory of guilt, failed to meet
his burden of making a proper record to support his contention of error, and this failure is to his
detriment. See People v. Gavin, 2022 IL App (4th) 200314, ¶ 71. Therefore, we find defendant’s
argument is fundamentally flawed.
¶ 54 Although there was evidence presented to support defendant’s version of events,
there was also sufficient evidence to refute it. A conflict in the evidence does not justify a reversal
where there is sufficient credible evidence to sustain the convictions. People v. Sheppard, 402 Ill.
347, 351 (1949). We decline to reweigh the evidence and reiterate it was the jury’s role to
determine the credibility of the witnesses, assign weight to the testimony, resolve conflicts in the
evidence, and draws reasonable inferences from that evidence. Jackson, 232 Ill. 2d at 280-81. For
these reasons, we cannot find the evidence is so unreasonable, improbable, or unsatisfactory that
it raises a reasonable doubt of defendant’s guilt.
¶ 55 B. Rule 431(b)
¶ 56 Defendant argues the trial court erred when it failed to ask the prospective jurors
whether they accepted the principles enumerated in Rule 431(b). Defendant concedes he forfeited
this claim because he did not object during voir dire or raise the issue in his posttrial motion.
However, he argues this claim may be reviewed for plain error.
¶ 57 1. Plain Error
- 16 - ¶ 58 To preserve an alleged error for review, a criminal defendant must object at trial
and include the alleged error in a written posttrial motion. People v. Thompson, 238 Ill. 2d 598,
611 (2010). A defendant’s failure to preserve the alleged error results in forfeiture of his claim. Id.
at 612. However, this court may consider a forfeited claim when the defendant demonstrates a
plain error affecting his substantial rights occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). Pursuant
to the plain-error doctrine, the defendant must demonstrate a clear or obvious error occurred and
either (1) “the evidence is so closely balanced that the error alone threatened to tip the scales of
justice against the defendant, regardless of the seriousness of the error” or (2) “that error is so
serious that it affected the fairness of the defendant’s trial and challenged the integrity of the
judicial process, regardless of the closeness of the evidence.” People v. Piatkowski, 225 Ill. 2d 551,
565 (2007). The defendant bears the burden of persuasion under either prong. People v. Adams,
2012 IL 111168, ¶ 21. We first determine whether an error occurred. People v. Eppinger, 2013 IL
114121, ¶ 19.
¶ 59 Rule 431(b) requires the trial court to ask each prospective juror, either individually
or in a group:
“[W]hether 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.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 60 Here, the trial court recited the four propositions in Rule 431(b) to the jury and
asked whether they understood them and whether they disagreed with them. Defendant argues the
- 17 - court was required to ask whether the jury accepted the propositions rather than disagreed with
them. The State contends (1) the alleged error is merely arguable error rather than clear and
obvious error and (2) no error occurred because when the court asked whether the prospective
jurors disagreed with the principles, it was effectively asking if the jury accepted them, which
complied with Rule 431(b). We disagree.
¶ 61 Our supreme court has explained a trial court complies with Rule 431(b) by asking
each juror whether he or she understands and accepts the principles. People v. Wilmington, 2013
IL 112938, ¶ 32. This court has analyzed Wilmington and found the supreme court made clear
strict compliance with Rule 431(b) is required. People v. Curry, 2013 IL App (4th) 120724, ¶ 64.
Trial courts must exercise diligence to comply with Rule 431(b) and must not deviate in any way
from the precise language chosen by the supreme court to be in that rule. People v. McGuire, 2017
IL App (4th) 150695, ¶ 35; see People v. Stevens, 2018 IL App (4th) 160138, ¶ 26 (finding the
language in Rule 431(b) is clear the two questions to be asked are simple: “ do you understand’ ”
and “ ‘do you accept’ ”).
¶ 62 Therefore, when the trial court asked the prospective jurors if they disagreed with
the principles set forth in Rule 431(b), rather than if they accepted them, the court erred. People v.
Riddle, 2023 IL App (4th) 220671-U, ¶¶ 26-30; see Curry, 2013 IL App (4th) 120724, ¶ 65
(finding the court failed to ask and provide each juror an opportunity to respond to the question
“do you accept”). Having established error occurred in this case, we now must decide whether
defendant has shown the error amounts to plain error.
¶ 63 Defendant only argues plain error occurred under the first prong in that the evidence
was closely balanced. He contends (1) the evidence on one key point was largely based upon
credibility, (2) he consistently stated he was not driving, (3) the testimony of the crash
- 18 - reconstruction experts was vague and failed to show what they were describing, and (4) the
evidence failed to explain how his injuries could have occurred if he was the driver, as his injuries
were on his right side and consistent with having been the passenger.
¶ 64 Whether evidence is closely balanced is a separate question from whether the
evidence is sufficient to sustain a conviction. Piatkowski, 225 Ill. 2d at 566. “In determining
whether the evidence adduced at trial was close, a reviewing court must evaluate the totality of the
evidence and conduct a qualitative, commonsense assessment of it within the context of the case.”
People v. Sebby, 2017 IL 119445, ¶ 53. This involves assessing the evidence on the elements of
the charged offenses along with any evidence regarding the witnesses’ credibility. Id. This analysis
does not involve the sufficiency of close evidence, but rather, the closeness of sufficient evidence.
Stevens, 2018 IL App (4th) 160138, ¶ 71.
¶ 65 Here, defendant only contested he was driving at the time of the incident and when
the UTV was fleeing from the deputies immediately before the crash, which resulted in Pitts’s
death. The State presented (1) testimony from Deputies Park and Zehr, who were engaged in a
pursuit of the UTV, observed defendant driving, and believed defendant was driving when the
UTV fled through the field and at the time of the accident; (2) testimony from Trooper McClenning
and Master Sergeant Brachear, who conducted a detailed reconstruction of the scene and also
concluded defendant was driving when the UTV fled through the field and at the time of the
accident; and (3) dash camera videos corroborating the officers’ recollection of events.
Defendant’s testimony regarding the events that took place that night was largely contradicted and
implausible, which called his credibility into question. Dr. Piening provided the only medical
testimony and stated defendant’s injury could have occurred under either the State’s theory or
defendant’s theory.
- 19 - ¶ 66 Therefore, although there were conflicting accounts as to who was driving when
the UTV fled through the field and at the time of the accident, only the officers’ accounts were
plausible and supported by corroborating evidence. Evaluating the totality of the evidence and
conducting a qualitative, commonsense assessment, we conclude that the evidence was not closely
balanced. See Sebby, 2017 IL 119445, ¶¶ 61-62 (holding the evidence was closely balanced where
there were two conflicting credible accounts, both accounts were plausible, and neither version
was supported by corroborating evidence); People v. Naylor, 229 Ill. 2d 584, 607-08 (2008)
(holding the evidence was closely balanced where the defendant’s testimony was consistent with
much of the officers’ testimony, the different accounts were plausible, and no extrinsic evidence
corroborated either’s version of events). Accordingly, reversal is not warranted under the plain
error doctrine.
¶ 67 2. Ineffective Assistance of Counsel
¶ 68 Defendant alternatively argues he received ineffective assistance of counsel where
his trial counsel failed to object to the trial court’s erroneous Rule 431(b) questioning and his
posttrial counsel failed to preserve the error in a posttrial motion. The State responds counsel was
not ineffective because the decisions of when to object and which issue to raise in a motion to
reconsider represent matters of judgment and trial strategy.
¶ 69 The United States and Illinois Constitutions guarantee criminal defendants the right
to the effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. In
determining whether defendant was denied effective assistance of counsel, we apply the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). “To prevail on
such a claim, a criminal defendant must show both that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced defendant such that he was deprived of a fair trial.”
- 20 - People v. Brown, 2023 IL 126852, ¶ 11. Therefore, failure to establish either prong of this test will
be fatal to the claim. People v. Richardson, 189 Ill. 2d 401, 411 (2000). When a defendant raises
his claim of ineffective assistance of counsel for the first time on appeal, this court’s review is
de novo. People v. Fox, 2022 IL App (4th) 210262, ¶ 129.
¶ 70 Here, defendant’s argument is based on the trial court failure to comply with Rule
431(b) and his counsels’ failure to preserve that error for review. However, we find defendant has
failed to demonstrate he was prejudiced. A trial court’s failure to comply with Rule 431(b) does
not automatically result in a biased jury. Thompson, 238 Ill. 2d at 610. The questioning set forth
in Rule 431(b) is merely one way of helping to ensure a fair and impartial jury. Id. at 610-11.
Defendant points to no evidence suggesting the jury was biased and he suffered prejudice as a
result of his counsel’s failure to object to the Rule 431(b) questioning. As we have already
concluded the evidence in this case was not closely balanced, defendant cannot demonstrate the
outcome of his trial would have been different had counsel objected to the court’s Rule 431(b)
questioning. See Curry, 2013 IL App (4th) 120724, ¶ 93 (finding no evidence demonstrated the
jury was biased where the trial court failed to comply with Rule 431(b) and the defendant could
not demonstrate prejudice where the evidence was not closely balanced). Therefore, defendant was
not denied the effective assistance of trial counsel.
¶ 71 C. Sentencing
¶ 72 Defendant argues he did not receive a fair sentencing hearing where the trial court
declined to consider mercy in mitigation. Again, he acknowledges he failed to preserve this issue
for review and asks this court to review it for plain error. The State argues mercy is not a statutory
factor the court must consider, and therefore, the court did not err. The State also maintains the
court properly considered the statutory factors and the evidence before it.
- 21 - ¶ 73 1. Plain Error
¶ 74 As previously explained, our first step in a plain-error analysis is to determine
whether any error occurred. Eppinger, 2013 IL 114121, ¶ 19.
¶ 75 The trial court has broad discretionary powers when imposing a sentence. Ill. Const.
1970, art. I, § 11; People v. Stacey, 193 Ill. 2d 203, 209 (2000). An appropriate sentence must be
based upon the particular circumstances of an individual case, including (1) the defendant’s
history, character, and rehabilitative potential; (2) the seriousness of the offense; (3) the need to
protect society; and (4) the need for deterrence and punishment. People v. McGath, 2017 IL App
(4th) 150608, ¶ 63. The court is also to consider appropriate aggravating and mitigating factors as
set forth in the Unified Code of Corrections. See 730 ILCS 5/5-5-3.1(a) (West 2022) (mitigating
factors); id. § 5-5-3.2(a) (aggravating factors). However, the court does not need to recite and
assign value to each factor considered. People v. Pina, 2019 IL App (4th) 170614, ¶ 19. “There is
a strong presumption that the trial court based its sentencing determination on proper legal
reasoning, and a court of review should consider the record as a whole, rather than focusing on a
few words or statements by the trial court.” People v. Canizalez-Cardena, 2012 IL App (4th)
110720, ¶ 22. A sentence imposed by the trial court will not be reversed absent an abuse of
discretion. Pina, 2019 IL App (4th) 170614, ¶ 20.
¶ 76 Defendant asserts the trial court erred when it declined to consider mercy as a
mitigating factor, which ultimately caused the court to sentence him near the maximum sentence
allowed. He fails to cite any authority explicitly providing mercy is a factor the court must consider
in mitigation. Instead, he contends the statute pertaining to the mitigating factors (730 ILCS
5/5-5-3.1(a) (West 2022)) emphasizes “the importance of mitigation, allocution, and opportunities
to consider lesser sentences, i.e., mercy.” However, the record clearly establishes the court
- 22 - considered the presentence investigation report, financial impact statement, arguments presented
by the parties, defendant’s statement in allocution, victims’ statements, and sentencing
alternatives. Moreover, defendant’s sentences are within the statutory range. We also note the court
did not order defendant to serve these sentences consecutively.
¶ 77 Additionally, defendant claims the trial court only cited one factor in mitigation and
spent more time on the factors in aggravation. However, he only argues on appeal the court failed
to consider mercy in mitigation, which we already decided was not in error. The record
demonstrated there were more factors for the court to examine in aggravation rather than in
mitigation and it properly considered those factors in sentencing defendant. Therefore, we cannot
find the court abused its discretion when it sentenced defendant to 13 years in DOC. Because we
have determined the court did not abuse its discretion when it considered the statutory factors in
mitigation and aggravation, no error occurred, and our plain-error analysis ends here.
¶ 78 2. Ineffective Assistance of Counsel
¶ 79 Defendant alternatively argues his counsel was ineffective for failing to preserve
his claim the trial court erred when it declined to consider mercy as a mitigating factor. To
demonstrate ineffective assistance of counsel, defendant must show both (1) counsel’s
performance was deficient and (2) the deficient performance prejudiced him. Brown, 2023 IL
126852, ¶ 11. However, as we already concluded the court properly considered the statutory
factors and evidence before it when sentencing defendant, there is no reasonable probability a
motion to reconsider defendant’s sentence would have been granted on that basis. Thus, counsel’s
decision to not include this issue in the motion to reconsider the sentence did not prejudice
defendant, and thus, it did not constitute ineffective assistance of counsel. See People v. Caffey,
- 23 - 205 Ill. 2d 52, 133 (2001) (disposing of the defendant’s claim of ineffective assistance of counsel
on the prejudice prong alone where, if counsel had objected, the result would have been the same).
¶ 80 III. CONCLUSION
¶ 81 For the reasons stated, we affirm the trial court’s judgment.
¶ 82 Affirmed.
- 24 -