People v. Day

2019 IL App (4th) 160217-B

Opinion

FILED September 10, 2019 2019 IL App (4th) 160217-B Carla Bender 4th District Appellate NO. 4-16-0217 Court, IL

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Macon County WILLIAM E. DAY, ) No. 15CF1123 Defendant-Appellant. ) ) Honorable ) James R. Coryell, ) Judge Presiding.

JUSTICE CAVANAGH delivered the judgment of the court, with opinion. Justices Knecht and Turner concurred in the judgment and opinion.

OPINION

¶1 A jury found defendant, William E. Day, guilty of driving under the combined

influence of alcohol and cannabis (625 ILCS 5/11-501(a)(5) (West 2014)) and driving while his

driver’s license was revoked (id. § 6-303(d-2)). The Macon County circuit court sentenced him

to concurrent terms of imprisonment.

¶2 Defendant appeals on five grounds.

¶3 First, he argues that the evidence is insufficient to support the convictions. Our

deferential standard of review compels us to disagree.

¶4 Second, defendant claims that the prosecutor committed plain error by repeatedly

attempting to introduce hearsay in the teeth of multiple sustained objections. The transcript of the

jury trial does not bear out that claim. ¶5 Third, defendant complains that the circuit clerk imposed fines upon him that the

trial court never imposed in its sentence. We cannot legitimately take cognizance of the clerk-

imposed fines since they can be found only in a “Payment Status Information” sheet, a document

that (contrary to our earlier ruling, which we rescind) does not belong in the common-law record.

¶6 Fourth, defendant claims he is entitled to an additional day of presentence credit.

In part E of the opinion that we issued in this appeal on January 22, 2019 (People v. Day, 2019

IL App (4th) 160217, ¶¶ 65-69), we addressed defendant’s claim for the additional day of

presentence credit. On May 22, 2019, the supreme court denied defendant’s petition for leave to

appeal but, in the exercise of its supervisory authority, directed us to vacate part E and remand

this case to the circuit court, where, pursuant to Illinois Supreme Court Rule 472 (eff. May 17,

2019), defendant may raise his claim for an additional day of presentence credit. In this new

version of our opinion, we comply with the supervisory order.

¶7 Fifth, just as defendant claims he is entitled to an additional day of presentence

credit, he claims that, for the same day, he is entitled to an additional $5 of monetary credit

against his fines. In part F of the previous version of our opinion in this appeal, we addressed that

claim as well. See Day, 2019 IL App (4th) 160217, ¶¶ 70-73. In its supervisory order, the

supreme court directed us to vacate part F and to remand this case to the circuit court for

proceedings pursuant to Rule 472. People v. Day, No. 124518 (Ill. May 22, 2019) (supervisory

order). Accordingly, in this new version of our opinion, we do so.

¶8 Therefore, we affirm the convictions, and we affirm the sentences except for the

presentence credit and the fines; we remand this case for further proceedings on defendant’s

claims for an additional day of presentence credit and an additional $5 of monetary credit against

-2- his fines, after which the circuit court shall either leave the presentence credit and fines

unchanged or make adjustments, as the evidence warrants.

¶9 I. BACKGROUND

¶ 10 A. The Jury Trial (January 20 to 21, 2016)

¶ 11 1. The Testimony of Joseph Herbert

¶ 12 On September 8, 2015, at about 9 p.m., a Macon County deputy sheriff, Joseph

Herbert, drove his squad car to the intersection of Kruse Road and Illinois Route 121, south of

Mt. Zion, Illinois, to investigate a reported single-vehicle accident.

¶ 13 At the southeast corner of the intersection, a black 1975 Chevrolet pickup truck

had come to rest. Herbert took photographs. The truck had “front[-]end damage to the middle

grill, bumper region,” as if it had “struck a tree or pole or something of that nature,” and leaves

were entangled in the grill. The engine was off, but the headlights were still on, and the key was

in the ignition. Nobody was in the truck or anywhere in sight. “On the driver’s seat floorboard[,]

there was a black cell phone and one orange flip-flop.”

¶ 14 About three-quarters of a mile north, in the 5400 block of Kruse Road, a camper,

or “topper,” was on the ground. It had sustained “extensive damage to the front.” “[O]nce it

became separated from the vehicle,” it had “more or less collapsed on itself.” Herbert inferred

that the 5400 block of Kruse Road was the “original accident scene”—he found the tree that the

truck apparently had struck—and that, “[a]fter the camper became separated from the vehicle,

the vehicle continued [south] from the accident scene.”

¶ 15 About 57 minutes after Herbert arrived at the scene, a call came in from a third

party, requesting a welfare check of “a white male” who was walking south on Illinois Route

121, south of Herbert’s location. Herbert sent another deputy sheriff, Shane Wendell, to check on

-3- that man and make sure he was all right. After a while, Wendell returned with defendant, whose

last known address was 1770 East Locust Street, Decatur, Illinois, about six to eight miles away

from the intersection of Kruse Road and Illinois Route 121.

¶ 16 Defendant had “red bloodshot eyes.” He was shoeless, and his bare feet were

muddy. A “strong odor of [an] alcoholic beverage [was] coming from his breath,” and he

“sway[ed] [from] side to side” as Herbert talked with him. Wendell handed Herbert “a small

white tin,” which Wendell had “located on [defendant] prior to transporting him back to [the]

scene.” Inside the tin was a “[s]mall amount of green leafy substance,” which field tested

positive for cannabis. Defendant admitted to Herbert that, before the accident, he “consumed

beer and smoked cannabis.”

¶ 17 Because defendant appeared to have a cut on his upper lip, Herbert asked him if

he had suffered any injury in the accident. Defendant answered no and explained that the sore on

his upper lip was herpes, which he had caught, he said, from prostitutes. Herbert asked him if he

had been the driver. Defendant answered he had not. He said that, instead, his friend Buddy

Young had been the driver and that, after the accident, Young had chosen to walk north on

Illinois Route 121 whereas he, defendant, had chosen to walk south. Defendant was unable,

however, to provide any description of Young other than to say he was “a black male.” Herbert

asked defendant how long he had known Young. Defendant answered he did not know. Herbert

asked defendant where Young could be located. Defendant again answered he did not know.

¶ 18 The prosecutor asked Herbert:

“Q. Did you ask him about the cell phone that was located inside the

vehicle?

A. Yes, ma’am.

-4- Q. What was his response to that?

A. He said it was his phone.

Q. Did you ask him about the shoe that was found inside the vehicle?

Q. And what was his response?

A. He said it was his flip—shoe.”

¶ 19 Herbert requested defendant to undergo a field sobriety test. He refused. Herbert

then arrested him for driving under the influence (DUI) and for leaving the scene of an accident.

¶ 20 Herbert “turned the video camera around and filmed [defendant] on the way to

jail.” It appeared from the video footage that defendant now and then leaned over against the

interior of the squad car and fell asleep.

¶ 21 In the jail, before asking defendant to undergo chemical testing to measure his

blood alcohol content—a request that defendant ultimately refused—Herbert was required to

read to him a warning of the penalties he would incur should he refuse to undergo the test.

Herbert testified: “He bec[a]me belligerent, was screaming over me when I was trying to advise

him. And at one point he stood up and took an aggressive posture, and I thought we [were going

to] fight.” Herbert called the jail sergeant, Kristopher Thompson, to come in and stand nearby so

that he, Herbert, would not be attacked.

¶ 22 Herbert had been a deputy for the Macon County Sheriff’s Department since 2005

and “probably [had] encountered hundreds of intoxicated people while at work.” In his opinion,

defendant was intoxicated that night.

¶ 23 On cross-examination, Herbert testified that potential inmates first were brought

to the sally port of the county jail. The sally port was a large garage with a garage door on each

-5- end. Then they were brought into the prebooking area, or if they were suspected of DUI, they

were required to wait for 20 minutes in the DUI processing room. State rules of procedure for

DUI testing required that before administering a breath test to an arrestee, the arrestee had to be

observed for 20 minutes to ensure the arrestee did not vomit or eat anything during that 20-

minute period.

¶ 24 2. The Testimony of Shane Wendell

¶ 25 On September 8, 2014, at about 10:04 p.m., Wendell saw a man walking south on

Illinois Route 121, about a mile south of the accident site. It was defendant. Defendant told

Wendell who he was, and he presented a state identification card. Defendant was wearing no

shoes, and he appeared to be “highly intoxicated”: his breath smelled like alcohol, and his speech

was slurred. In defendant’s “left front pocket,” Wendell found “a white cannister,” which

contained a “substance *** that had the odor and appearance of cannabis.” Wendell “took him

back to the scene of the accident,” Illinois Route 121 and Kruse Road.

¶ 26 3. The Testimony of Kristopher Thompson

¶ 27 On September 8, 2015, around 11:55 p.m., when Kristopher Thompson was on

duty as “an administrative sergeant” “in charge of the third shift jail,” Herbert “requested

assistance because [an] arrestee was causing him some trouble.” The arrestee was defendant.

¶ 28 In his job, Thompson saw intoxicated people every night, and in his opinion

defendant was “extremely intoxicated.” He was combative, belligerent, and aggressive, and he

was not following commands.

¶ 29 4. The Sustained Objections to Herbert’s Testimony Regarding the Registered Ownership of the Truck

¶ 30 The prosecutor asked Herbert on direct examination:

-6- “Q. What did you do to try to figure out who the driver [of the pickup

truck] was?

A. I ran their license plate through M.S.O. dispatch[,] and they advised it

checked back to two individuals.

MR. REUTER [(DEFENSE COUNSEL)]: Objection, Your Honor.

THE COURT: Hearsay. Sustained.”

¶ 31 Later in her direct examination, the prosecutor asked Herbert whom Wendell

brought with him to the scene of the accident. Herbert answered:

A. One of registered owners of the vehicle, [defendant].

MR. REUTER: Objection, Your Honor. You want us to approach, or—

THE COURT: I’m going to ask them to disregard the registered owner

part of this and say he brought back [defendant].”

¶ 32 On redirect examination, the prosecutor asked Herbert:

“[MS. COURI (PROSECUTOR)]: When Deputy Wendell located an

individual by the name of William Day, why did you ask that he be transported

back to your scene?

A. The vehicle checked to William Day.

MR. REUTER: Objection, Your Honor.

MS. COURI: Your Honor, I would argue that that is not offered for the

truth of the matter asserted, but why he was proceeding in the investigation in the

manner he did.

-7- THE COURT: I think the evidence we have is that he was brought back.

I’m going to leave it at what we have. We have evidence that he was brought

back. So[,] sustained.”

¶ 33 5. Exhibits Admitted

¶ 34 The trial court admitted the photographs Herbert had taken of the truck and the

camper (People’s exhibit No. 1) and the package of cannabis (People’s exhibit No. 2) but

decided not to send the latter exhibit to the jury room. The State also offered a certified copy of

defendant’s driving abstract (People’s exhibit No. 3), which the court admitted, but because the

abstract was “a full listing” and included convictions, the court decided against publishing the

abstract to the jury. Instead, the court instructed the jury: “People’s exhibit [No.] 3 has been

received in evidence. It is a certified copy of the records of the Secretary of State indicating that

on September 8, 2015, [defendant’s] driver’s license was revoked.”

¶ 35 6. The Verdict

¶ 36 On January 21, 2016, the jury found defendant guilty of both DUI and driving

while his driver’s license was revoked.

¶ 37 B. The Sentence

¶ 38 On March 11, 2016, after denying a motion by defendant for a new trial or,

alternatively, for a judgment notwithstanding the verdict, the trial court sentenced him to

concurrent terms of five years’ imprisonment for DUI and two years’ imprisonment for driving

while his driver’s license was revoked. (Defendant had been convicted of DUI twice before.) The

court also imposed three fines: $1000 for driving under the influence, $100 for the trauma fund,

and $5 as a spinal cord fee.

-8- ¶ 39 After imposing those fines, the trial court stated: “I have 154 days served,” and

the court asked: “Does anybody else have a chance to calculate that?” Defense counsel

responded:

“MR. RUETER: I would say 155 [days], Judge. [Because] you would

include the first day of arrest, the 9th.

MS. COURI: That is fine.

THE COURT: Okay. 155 days. He is given an incarceration credit[,]

then[,] on his fines of $775 dollars [sic]. Anything else we need to—and he is also

sentenced to two years of mandatory supervised release or parole upon his

release. Anything else we need to do before we get to [the Rule] 605

[admonitions], State?

MS. COURI: I don’t believe so. Thank you, sir.

THE COURT: Mr. Rueter?

MR. RUETER: And I’m so sorry, Judge, looking at that again, I think it is

185 [days], actually.

THE COURT: I’ve got—

MR. RUETER: Twenty-two days of September.

THE COURT: Thirty-one [days] in October, [30 days] in November, [31

days] in December, and you got [31 days] in January, [29 days] in February, and

[10 days] in March.

MR. RUETER: Right. I think, well, I think that comes up to 185 [days].

THE COURT: Let’s just get out the calculator and see what it comes up

to.

-9- MR. RUETER: There would be a credit of—Well, actually, 184 [days].

So[,] it would be a credit of $920.

THE COURT: I think you may be right. [One hundred eighty-four] days.

You are right, 184 [days]. And then $920. Okay. [One hundred eighty-four] days,

$920 incarceration credit. Now, we ready for the [Rule] 605 admonitions?

MR RUETER: Yes, sir.”

¶ 40 C. The Motion to Reduce the Sentence

¶ 41 On March 14, 2016, defendant filed a motion to reduce the sentence, which the

trial court denied on March 17, 2016.

¶ 42 This appeal followed.

¶ 43 II. ANALYSIS

¶ 44 A. The Irrelevance of the Corpus Delicti Rule

¶ 45 Defendant invokes the corpus delicti rule, which provides that “the occurrence of

a crime cannot be established solely by a defendant’s uncorroborated confession.” People v.

Richmond, 341 Ill. App. 3d 39, 42 (2003). Because defendant never confessed to either of the

charged offenses, the corpus delicti rule that “an uncorroborated confession is insufficient to

support a conviction” is inapplicable. People v. Mendoza, 208 Ill. App. 3d 183, 203 (1991).

There is a difference between, on the one hand, confessing to a crime and, on the other hand,

admitting facts that, taken with other facts, tend to increase the probability of one’s guilt. People

v. Manske, 399 Ill. 176, 185 (1948).

¶ 46 B. The Sufficiency of the Evidence

¶ 47 According to defendant, the State failed to prove, beyond a reasonable doubt, that

he drove under the combined influence of alcohol and cannabis. When a defendant contends, on

- 10 - appeal, that the evidence in the trial is insufficient to support his conviction, we do not retry the

defendant. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). Instead, our “standard of review is

whether, after viewing all the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Id. We apply this standard regardless of whether the evidence was direct or

circumstantial. Id. “Circumstantial evidence is proof of certain facts and circumstances from

which the trier of fact may infer other connected facts that human experience dictates usually and

reasonably follow.” People v. White, 2016 IL App (2d) 140479, ¶ 37. “Circumstantial evidence

alone is sufficient to sustain a conviction where it satisfies proof beyond a reasonable doubt of

the elements of the crime charged.” Digirolamo, 179 Ill. 2d at 43.

¶ 48 In count I of the information, the State charged defendant with violating

subsection (a)(5) of the DUI statute (625 ILCS 5/11-501(a)(5) (West 2014)). The elements of

count I were that (1) he drove or was in actual physical control of the pickup truck (2) while he

was under the combined influence of alcohol and cannabis (3) to a degree that rendered him

incapable of driving safely. Id. Defendant does not appear to dispute the latter two elements, and

in any event, we find sufficient evidence that he was too intoxicated by alcohol and cannabis to

drive safely. A field sobriety test and chemical testing were not essential to proving he was

drunk. “A DUI conviction may be sustained based solely on the testimony of the arresting

officer, if credible.” People v. Janik, 127 Ill. 2d 390, 402 (1989). Three police officers who had

observed defendant testified he was highly intoxicated. It would be reasonable to infer that the

reason why he refused to undergo a field sobriety test and a breath test was that he knew these

tests would confirm he was under the influence. See People v. Garstecki, 382 Ill. App. 3d 802,

813 (2008). Looking at such evidence in the light most favorable to the prosecution, we conclude

- 11 - that a rational trier of fact could find, beyond a reasonable doubt, that defendant was so

intoxicated with alcohol and cannabis that it was dangerous for him to drive. See Digirolamo,

179 Ill. 2d at 43.

¶ 49 Further applying the same deferential standard of review, we find sufficient

circumstantial evidence that defendant drove the pickup truck while he was intoxicated. By his

own admission, his cell phone and flip-flop were on the driver’s-side floorboard of the truck.

Although he told the police that Buddy Young had been the driver, he did not know how long he

had been acquainted with Buddy Young or where Buddy Young could be reached—leading to a

reasonable inference that Buddy Young was a fictitious character and leading, in turn, to a

further reasonable inference that the reason why defendant lied was that he, in fact, had been the

driver. “A false exculpatory statement is probative of a defendant’s consciousness of guilt.”

(Internal quotation marks omitted.) People v. Milka, 211 Ill. 2d 150, 181 (2004). That defendant,

six to eight miles from home, left behind his cell phone and shoes and set out on a barefooted

hike down the highway could be suggestive of a hasty departure, as if he felt a pressing need to

put distance between himself and the scene of his crime. See People v. Henderson, 39 Ill. App.

3d 502, 507 (1976) (“The concept of flight embodies more than simply leaving the scene of the

crime. The accused must be attempting to avoid arrest or detection, actions which impl[ies] a

consciousness of guilt.”). And, again, “[a] defendant’s refusal to submit to chemical testing is

relevant circumstantial evidence of his consciousness of guilt.” Garstecki, 382 Ill. App. 3d at

813. Viewing the evidence in the light most favorable to the prosecution, we draw the inference

that defendant opposed the chemical confirmation of his intoxication precisely because he had

been driving; otherwise, it would not have mattered how intoxicated he was. See People v. Gray,

- 12 - 2017 IL 120958, ¶ 53 (“[v]iewing all of the evidence in the light most favorable to the

prosecution, coupled with the reasonable inferences that may be drawn therefrom”).

¶ 50 It would, after all, be a natural inference that defendant, as the registered owner of

the truck, was the person who had driven the truck. See People v. Lurz, 379 Ill. App. 3d 958, 971

(2008). The jury did not need Herbert to testify that defendant was the registered owner. The jury

could have readily inferred as much from what Wendell and Herbert did in their investigation.

See People v. Gacho, 122 Ill. 2d 221, 248 (1988) (such testimony is not hearsay, even if “the

inference logically to be drawn therefrom is that the information received motivated the officers’

subsequent conduct” (internal quotation marks omitted)); People v. Risper, 2015 IL App (1st)

130993, ¶ 40 (testimony “recounting the steps taken in a police investigation” is not hearsay

“even if, as a result of this testimony, a jury might be able to infer” “what nontestifying

witnesses [had] told [the police]” (internal quotation marks omitted)); People v. Leverston, 132

Ill. App. 3d 16, 33 (1985) (“[W]e have often held that testimony which reflects an investigatory

procedure entirely within the personal knowledge of the police officers is properly admissible as

nonhearsay evidence [citations], even though the logical inference drawn therefrom is that the

information they received motivated their subsequent conduct [citation].”). It is commonly

known that the first thing police officers do is run the license plates. There appears to be no

evidence that when Wendell came upon defendant, a mile from the scene of the accident, he

asked defendant if he had been in the accident. Instead, he asked defendant for identification, and

when he looked at defendant’s state identification card, the name he read apparently was reason

enough to take defendant up the road, to the scene of the accident. It was reason enough, the jury

may well have inferred, because Herbert had run the license plates and defendant’s name had

come back as the registered owner of the truck. One might infer that was why, when Wendell

- 13 - brought defendant to the scene, Herbert talked to defendant as if it already were a given that he

had been in the accident.

¶ 51 For all those reasons, we find sufficient evidence that the driver was defendant.

¶ 52 C. The Claim of Plain Error

¶ 53 Defendant alleges prosecutorial misconduct. According to him, the prosecutor

repeatedly attempted to elicit testimony from Herbert that the pickup truck was registered to

defendant, even though, in response to defendant’s objection, the trial court clearly ruled, from

the start, that such testimony was inadmissible hearsay.

¶ 54 As defendant admits, however, he never raised this issue in his posttrial motion.

To preserve an issue for review, a defendant must make a contemporaneous objection and also

raise the issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Doing only one

those two things is not enough. Id.

¶ 55 Even so, defendant argues that the doctrine of plain error should avert the

procedural forfeiture. See People v. Thompson, 238 Ill. 2d 598, 613 (2010) (the doctrine of plain

error bypasses forfeiture principles and allows a reviewing court to consider unpreserved claims

of error). He invokes both of the alternative theories, or “prongs,” of plain error. He contends

that (1) the evidence was closely balanced and (2) the error was so serious as to threaten the

integrity of the judicial system. See People v. Herron, 215 Ill. 2d 167, 186-87 (2005).

¶ 56 Because there can be no plain error without an error (People v. Smith, 2016 IL

119659, ¶ 39), we begin by considering whether the error that defendant alleges—prosecutorial

misconduct—really occurred. Defendant argues it is prosecutorial misconduct to “defy the trial

court’s rulings by repeating the same questions after objections have been sustained.” People v.

- 14 - Larry, 218 Ill. App. 3d 658, 663 (1991). Repeatedly trying to introduce improper evidence can

deprive the trial court’s rulings of their “salutary effect.” Id.

¶ 57 Actually, though, there was no repetition of an objectionable question. Only once

did the prosecutor ask Herbert a question calculated to elicit from him who the registered owner

of the pickup truck reportedly was, and in that instance the prosecutor had a good-faith argument

that Herbert’s answer would not be hearsay. The prosecutor asked Herbert: “When Deputy

Wendell located an individual by the name of William Day, why did you ask that he be

transported back to your scene?” Herbert answered: “The vehicle checked to William Day.” In

response to defense counsel’s general objection, the prosecutor stated: “Your Honor, I would

argue that that is not offered for the truth of the matter asserted, but why he was proceeding in

the investigation in the manner he did.”

¶ 58 This was a reasonable argument. Case law teaches: “Statements are not

inadmissible hearsay when offered for the limited purpose of showing the course of a police

investigation where such testimony is necessary to fully explain the State’s case to the trier of

fact.” People v. Jura, 352 Ill. App. 3d 1080, 1085 (2004). In other words, “[a] police officer may

testify about conversations with others to show the steps in his investigation so long as this

testimony is not used to prove the truth of the matter asserted by these other persons.” People v.

Williams, 289 Ill. App. 3d 24, 31 (1997); see also Ill. R. Evid. 801(c) (eff. Jan. 1, 2011) (defining

“hearsay” as “a statement, other than one made by the declarant while testifying at the trial or

hearing, offered in evidence to prove the truth of the matter asserted” (emphasis added)). The

prosecutor had a good-faith argument that when she elicited from Herbert the testimony that

“[t]he vehicle checked to [defendant],” her purpose in doing so was to explain to the jury why

Herbert had directed Wendell to transport defendant back to the scene, not to prove that the

- 15 - vehicle really was registered to defendant. Given that purpose, Herbert’s testimony that “[t]he

vehicle checked to [defendant]” arguably would not have been hearsay because instead of being

offered for its truth (see Ill. R. Evid. 801(c) (eff. Jan. 1, 2011)), the testimony would have been

offered to explain Herbert’s investigatory actions (see Jura, 352 Ill. App. 3d at 1085; Williams,

289 Ill. App. 3d at 31).

¶ 59 As for the other, previous instance when Herbert testified the truck was registered

to defendant, it was testimony he volunteered, testimony that was nonresponsive to the

prosecutor’s question. We see no basis for accusing the prosecutor of misconduct when, only

once, her witness briefly inserted uncalled-for information in his answer. Therefore, the error that

defendant alleges, prosecutorial misconduct, is nonexistent in this case. We see no “repetition of

objectionable questions” by the prosecutor. Larry, 218 Ill. App. 3d at 663. Quoting People v.

Blue, 189 Ill. 2d 99, 138 (2000), defendant argues that “[i]ntentional and pervasive prosecutorial

misconduct may *** warrant reversal under the substantial right prong of the plain error rule,

‘regardless of the strength of the evidence of defendant’s guilt.’ ” (Emphasis omitted.) But there

was no intentional and pervasive prosecutorial misconduct in this case.

¶ 60 For that matter, defendant has not even identified an error. When Herbert

volunteered, in his testimony, that defendant was the registered owner of the pickup truck, the

trial court sustained not only defense counsel’s objection but immediately instructed the jury to

disregard the testimony. The next time Herbert testified that “[t]he vehicle checked to

[defendant],” his testimony might have been offered for a reason other than its truth, as we have

explained—but the court nevertheless sustained defense counsel’s objection. After the close of

evidence, the court instructed the jury: “You should disregard testimony *** which the court has

refused or stricken.” We presume the jury followed the court’s instructions, including that one.

- 16 - See People v. Glasper, 234 Ill. 2d 173, 201 (2009). On the strength of that presumption, we find

no error, let alone plain error.

¶ 61 D. Clerk-Imposed Fines

¶ 62 Defendant complains that, in a “Payment Status Information” sheet, the circuit

clerk imposed on him several fines that the trial court never imposed in the sentencing hearing.

He requests that we vacate these clerk-imposed fines, since only a judge can impose fines. See

People v. Smith, 2014 IL App (4th) 121118, ¶ 18.

¶ 63 On December 29, 2017, we granted a motion by defendant to supplement the

record with this “Payment Status Information” sheet. Later, on June 1, 2018, the supreme court

held in People v. Vara, 2018 IL 121823, ¶ 22:

“[T]he payment status information sheet *** is a document that was created

outside the record of the trial court proceedings. Although defendant was granted

leave to include it as a ‘supplement’ to the record, that leave was not warranted.

Illinois Supreme Court Rule 608 (eff. July 1, 2017) details the items that are to be

included in the record on appeal in a criminal case. The payment status

information sheet is not part of the common-law record or the report of

proceedings of defendant’s criminal prosecution. Under Illinois Supreme Court

Rule 329 (eff. Jan. 1, 2006), a supplemental record may be filed to correct

material omissions or inaccuracies or if the record is insufficient to present fully

and fairly the question involved. Amendment of the record is not to be used as a

device for inserting extraneous materials into the record on appeal. The payment

status information sheet at issue here cannot be characterized as a ‘material

- 17 - omission’ or something that should have been included in the record of the

proceedings before the circuit court.”

¶ 64 It follows, from the quoted discussion, that we should not have granted leave to

supplement the record with the “Payment Status Information” sheet. Therefore, we change our

ruling of December 29, 2017, so as to deny, rather than grant, defendant’s motion to supplement

the record with the “Payment Status Information” sheet. Because we are confined to the record

on appeal (People v. Canulli, 341 Ill. App. 3d 361, 367-68 (2003); People v. Wilson, 2013 IL

App (1st) 112303, ¶ 16), the issue of clerk-imposed fines, which are ascertainable only from the

“Payment Status Information” sheet, is not legitimately before us.

¶ 65 III. CONCLUSION

¶ 66 For the foregoing reasons, we affirm the convictions, and we affirm the sentences

except for the presentence credit and the fines. We remand this case for further proceedings on

defendant’s claims for an additional day of presentence credit and an additional $5 of monetary

credit against his fines, after which the circuit court shall either leave the presentence credit and

fines unchanged or make adjustments, as the evidence warrants.

¶ 67 Affirmed in part and remanded with directions.

- 18 - No. 4-16-0217

Decision Under Review: Appeal from the Circuit Court of Macon County, No. 15-CF- 1123; the Hon. James R. Coryell, Judge, presiding.

Attorneys James E. Chadd, Jacqueline L. Bullard, and Jessica L. Fangman for of State Appellate Defender’s Office, of Springfield, for Appellant: appellant.

Attorneys Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J. for Robinson, and Kathy Shepard, of State’s Attorneys Appellate Appellee: Prosecutor’s Office, of counsel), for the People.

- 19 -