People v. Luth

2025 IL App (5th) 230146-U

• Court: Appellate Court of Illinois
• Decided: December 9, 2025
• Docket: 5-23-0146
• Status: Unpublished

Opinion

NOTICE 2025 IL App (5th) 230146-U NOTICE Decision filed 12/09/25. The This order was filed under text of this decision may be NO. 5-23-0146 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Clark County. ) v. ) No. 22-CM-74 ) CHRISTOPHER A. LUTH, ) Honorable ) Tracy W. Resch, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOLLINGER ∗ delivered the judgment of the court. Justices Boie and Vaughan concurred in the judgment.

ORDER

¶1 Held: The judgment of the trial court is affirmed where defendant was not denied a fair trial as the trial court’s use of modified jury instructions was not in error. However, the matter is remanded to the trial court for further proceedings pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

¶2 Defendant, Christopher A. Luth, was convicted after a jury trial of one count of unlawful

violation of a stalking no contact order pursuant to section 12-3.9(a) of the Criminal Code of 2012

(Code) (720 ILCS 5/12-3.9(a) (West 2020)). Defendant was sentenced to one year of probation

with conditions. Defendant appeals, arguing that the trial court erred when it submitted jury

instructions that omitted an essential element, the mental state “knowingly,” from the definition of

∗ Justice Barberis was originally assigned to the panel. Justice Bollinger was later substituted on the panel and has listened to oral arguments and read the briefs. 1 the offense. Further, defendant argues that the trial court failed to conduct a preliminary inquiry

despite defendant’s ineffective assistance of counsel assertions contained in his presentence

investigation report. For the following reasons, we affirm the judgment of the trial court but

remand for further proceedings pursuant to People v. Krankel, 102 Ill. 2d 181 (1984).

¶3 I. BACKGROUND

¶4 On June 13, 2022, the State charged defendant with violation of a stalking no contact order

(VSNCO), alleging that on June 11, 2022, defendant, having been served with notice of the

contents of a stalking no contact order issued on October 13, 2021, knowingly committed an act

prohibited by the stalking no contact order in that he had verbal contact with Dustin Misner, a

protected person named in the stalking no contact order, in violation of section 12-3.9(a) of the

Code (720 ILCS 5/12-3.9(a) (West 2020)). On September 29, 2022, the State filed an amended

information charging defendant with two counts of unlawful VSNCO, alleging in count I that on

June 11, 2022, defendant, having been served with notice of the contents of a stalking no contact

order issued on October 13, 2021, intentionally committed an act prohibited by the stalking no

contact order in that he made contact with Dustin Misner, a protected person named in the stalking

no contact order, and alleging in count II that on June 11, 2022, defendant, having been served

with notice of the contents of a stalking no contact order issued on October 13, 2021, intentionally

committed an act prohibited by the stalking no contact order in that he was within 50 feet of Dustin

Misner, a protected person named in the stalking no contact order, both in violation of section 12-

3.9(a) of the Code (id.).

¶5 On September 30, 2022, the State filed a motion in limine to admit proof of other crimes,

wrongs, or acts. A hearing was held on the motion on October 31, 2022, and the motion was

ultimately denied. However, during the hearing the trial court and counsel had an extensive

2 discussion regarding the various legal issues involved in the matter, including the issues of the

definition of “contact” and of whether defendant “knowingly” violated the stalking no contact

order (SNCO). The trial court inquired whether a jury instruction conference in advance of trial

could be beneficial, to which both counsel agreed. The State and defense counsel agreed there

were no Illinois Pattern Jury Instructions (IPI) for the offense of VSNCO and, therefore, modified

instructions would need to be utilized. The trial court set a date for an instructions conference prior

to trial but stated it would not make any rulings on the instructions at that hearing. Rather, the trial

court and counsel would conduct the formal jury instruction conference during the trial.

Accordingly, the trial court did not think the instruction conference needed to be recorded, and

counsel agreed.

¶6 Defendant’s jury trial was held on November 15, 2022, and the State proceeded to trial

only on count I of the amended information. The State informed the trial court that the parties had

previously exchanged jury instructions, had spoken about them and that “I think we’ve got an

agreement in regards to the jury instructions.” The State also stated:

“Okay, with the understanding, I believe there was some debate about the jury instruction

as to the 50 feet so what we have agreed to do, there’s actually a definition of contact in

the Contact, No Stalking Order that we’re going to include in the jury instructions. I’m

going to argue he was within 50 feet. But in the context of that being contact, and

additionally the State would be alleging other contact as well. But I think that clarifies what

[defense counsel] is trying to say in regards to the intentionality or the knowingly having

contact with Mr. Misner.”

3 ¶7 The State and defense counsel agreed that a record of voir dire was unnecessary and it was

not transcribed for the record. After the State gave its opening statement, defense counsel waived

his right to give an opening statement.

¶8 The State first called Clark County Sheriff’s Deputy Keith Crouch to testify. Deputy

Crouch testified that on October 14, 2021, at approximately 9:13 a.m., he personally served

defendant at his residence with the SNCO issued on October 13, 2021, in Clark County case No.

2021-OP-53. Officer Crouch identified People’s Exhibit A as the order listing Dustin Misner as

the petitioner and defendant as the respondent. People’s Exhibit A was admitted into evidence

without objection.

¶9 Dustin Misner then testified that he lived at 1209 Ash Street in Marshall, Illinois, with his

wife and youngest daughter. He had lived at that residence for a little over 20 years. Misner stated

that defendant lived across the street from Misner, with Misner living on the south side of Ash

Street and defendant living on the north side of the street. According to Misner, defendant has

lived in his residence for about eight years. Misner testified that on September 27, 2021, he

petitioned the Clark County circuit court for a SNCO against defendant. A hearing was set on the

petition for October 13, 2021. Both Misner and defendant attended the hearing and provided

testimony. After hearing the testimony, the circuit court granted the petition and entered a written

SNCO against defendant. Misner identified People’s Exhibit A as the SNCO filed on October 13,

2021, that listed Misner along with his wife and daughter as protected parties, and defendant as

the respondent. The SNCO was to be in effect until October 13, 2022, and was never modified or

vacated. Further, the SNCO listed Misner’s address as 1209 Ash Street and defendant’s address as

1302 Ash Street.

4 ¶ 10 Misner then testified that the SNCO contained the condition that defendant not contact

Misner in any way directly, indirectly, or through third parties, including but not limited to phone,

written notes, mail, email, or fax. Further, the SNCO ordered defendant to stay at least 50 feet

away from Misner and his residence. Misner testified that he had security cameras installed on his

home in October 2021, after the SNCO was granted. Misner stated that one of the security cameras

is pointed directly at defendant’s residence at all times. Misner continued by stating that on June

11, 2022, he backed his truck out of his garage on 13th Street and proceeded northerly towards

Ash Street to go to Walmart. He did not see defendant when he initially pulled out of his driveway.

As he approached the stop sign on 13th Street to turn onto Ash Street, Misner saw defendant in his

front yard with his dog. Misner testified that as he was pulling up to the stop sign, he made eye

contact with defendant, who was also watching Misner. Misner stated that he did not speak to

defendant and started to turn left onto Ash Street. As Misner was turning left, it looked like

defendant was going to throw a water bottle at Misner’s truck, so he was watching defendant.

According to Misner, as he went around the corner, defendant threw the water bottle.

¶ 11 Misner testified that he was afraid the water bottle was going to hit his truck and he stopped

his truck “just about the middle of the intersection.” When asked if Misner said anything to

defendant, Misner stated that he believed he asked defendant “what was that about?” According

to Misner, defendant was “talking, going on about something,” but Misner could not remember

everything defendant was saying. He did recall defendant saying that he was not supposed to be

talking to Misner. Defendant left his yard and walked to the front of Misner’s truck, grabbed the

water bottle, and then walked back to the truck. Misner stated that at that point, defendant stopped,

turned around, and said something else before moving on. Misner thought defendant was saying

something about Misner’s house but could not remember all of what defendant was saying. Misner

5 never got out of his truck but testified that he told defendant that he did not “want to keep feuding.”

Misner stated that defendant seemed very agitated. Misner stated that defendant was probably

about 10 feet from Misner during the encounter.

¶ 12 Misner testified that the encounter lasted probably less than two minutes, and defendant

left the road and returned to his property. Misner then sat in the road for a few seconds and then

pulled into the front of his residence and called the police. Officer Christopher McKillop arrived

at his residence about 10 minutes later. Misner spoke with Officer McKillop when he arrived, and

Misner informed him that he had security cameras. Misner stated that the security cameras

captured video of the incident. At that point, the State admitted People’s Exhibit B, the DVD of

the security cameras videos, without objection. The video was published to the jury and showed

defendant coming out of his residence, Misner’s black truck going by, and defendant throwing the

water bottle which landed in the street near Misner’s truck.

¶ 13 Misner continued his testimony stating that while he and Officer McKillop were talking

together in Misner’s garage, defendant started walking towards them. According to Misner,

defendant came out of his house and walked on 13th Street towards Misner’s garage. Officer

McKillop met defendant about halfway between the respective houses where defendant and

Officer McKillop spoke together. Misner remained in his garage at this time but could see

defendant and Officer McKillop. Misner could hear defendant and Officer McKillop talking and

it appeared that defendant was “saying something my way.” Misner admitted that he could not

understand what defendant was saying.

¶ 14 Misner was standing in his driveway and saw Officer McKillop arrest defendant and escort

him to Officer McKillop’s patrol vehicle that was also located in Misner’s driveway. Misner

believed that as defendant was being escorted to the patrol vehicle, defendant directed comments

6 toward Misner. Misner stated there was security camera video of this incident that was also

included in People’s Exhibit B (this second video was not played for the jury yet). Finally, Misner

testified that, at no point, did he give defendant permission to come into contact with Misner on

June 11, 2022.

¶ 15 On cross-examination, Misner was questioned regarding the incident and the security

camera video involving the water bottle. Misner admitted that his truck windows were down and

that when defendant walked up to Misner’s truck, he spoke to defendant first. At that point,

defendant said something back to Misner and left. Misner was then questioned regarding the

security cameras on his residence, stating that they were installed in October 2021, after the SNCO

was entered, because he wanted to see defendant at all times. Misner explained that the security

cameras were connected to his wife’s cellular phone and would send the video to her phone, not

Misner’s. Misner stated that after defendant threw the water bottle, Misner called his wife to see

if she could “bring up camera footage to see if it was on there.” Misner’s wife informed him that

there was a video of the incident. This was prior to Misner contacting the police because Misner

wanted to be sure there was security camera video of the incident before contacting the police.

¶ 16 Misner agreed that the security camera videos show that the encounter lasted less than two

minutes. Misner further admitted that he stopped his vehicle in the roadway to engage defendant

after the water bottle was thrown rather than continue driving to Walmart. Further, Misner

admitted the water bottle did not hit him and that he did not drive away after defendant picked up

the water bottle. Upon further questioning, Misner clarified that when Officer McKillop arrived,

Misner was in the garage located behind his residence, facing 13th Street. At no time while Officer

McKillop was present did Misner leave the garage. Misner agreed that he did not know what

comments defendant made to Officer McKillop while they were in the roadway. Misner also

7 testified that when he approached the intersection, he saw defendant in his yard, knew defendant

lived there, and that Misner was not surprised defendant was in his yard.

¶ 17 The State then called Marshall Police Department Officer Christoper McKillop to testify.

Officer McKillop stated that he was dispatched to Misner’s residence at approximately 12:40 p.m.

on June 11, 2022. When he arrived at the residence, he parked in the driveway in front of Misner’s

garage off 13th Street. According to Officer McKillop, when he arrived Misner was in the garage

and informed him of a complaint against defendant. Defendant was not present. Misner had

security camera video of the initial incident that he showed to Officer McKillop. Officer McKillop

described Misner as very upset, nervous, and shaking following the incident.

¶ 18 While Officer McKillop was speaking to Misner, he observed defendant leave his yard and

begin walking towards himself and the Misner residence. Officer McKillop stopped defendant in

the roadway of 13th Street. Officer McKillop and defendant began speaking and Misner remained

standing just inside of his garage. According to Officer McKillop, when he stopped defendant on

13th Street, defendant was 40 feet or less from the Misner residence. As defendant was

approaching Officer McKillop, defendant was talking to the officer and said: “Oh, look who it is.

I bet this is what all the fuss is about. You’re on duty, huh?” According to Officer McKillop,

defendant began discussing the incident, then discussed the neighborhood and how there was a

conspiracy against him amongst all the neighbors. At one point, defendant stepped back, looked

at Misner, and started directing comments towards Misner. According to Officer McKillop, these

comments were also about the neighborhood, the Misner residence, and the alleged conspiracy

against defendant.

¶ 19 Officer McKillop described defendant’s demeanor as very animated, moving his hands

around a lot, and raising his voice. Officer McKillop stated that he was aware there was security

8 camera video that captured his interaction with defendant on 13th Street. This second video was

also included in People’s Exhibit B and was published to the jury with no objection. After the

video was played for the jury, Officer McKillop continued, testifying that while he was interacting

with Misner and defendant, he was aware of the SNCO against defendant. Officer McKillop

decided to arrest defendant when he started directing comments towards Misner. Officer McKillop

then escorted defendant to his patrol vehicle that was still located in Misner’s driveway. Misner

was present in his garage, and prior to Officer McKillop placing defendant in the patrol vehicle,

defendant looked at Misner and started directing comments towards him. Officer McKillop stated

that he told defendant that he needed to stop because of the SNCO and then placed defendant in

the back seat of the patrol vehicle.

¶ 20 Officer McKillop testified that, while transporting defendant to jail, defendant made

various derogatory comments regarding the officer and law enforcement. Also, defendant stated

that the conversation between him and Misner was just a conversation and that nobody got upset

about it nor resorted to vulgar language.

¶ 21 On cross-examination, Officer McKillop stated that Misner had shown him a video of the

incident on Ash Street and described what he observed on the video. With regards to the incident

on 13th Street, while Officer McKillop was speaking with defendant, the officer stated that he

knew that it occurred 40 feet from the Misner residence. Officer McKillop explained this was an

approximation, along with his later review of the “county GIS mapping,” which, based on where

he was standing, was approximately 38 feet from the Misner residence. When questioned further,

Officer McKillop agreed that it was a “guess” about the location. Officer McKillop stated that

Misner did not tell him that Misner had heard any of defendant’s comments during this incident.

9 ¶ 22 The State rested its case-in-chief, and defendant motioned for a directed verdict, which the

trial court denied. The defense then called defendant to testify as its only witness. Defendant stated

that he resided at 1302 Ash Street in Marshall, Illinois, and had lived there for eight years.

Defendant was aware that the SNCO was entered in October 2021 and was in effect on June 11,

2022. According to defendant, on that date, he was in his yard with his dog so that it could go to

the bathroom. While in the yard, defendant was picking up water bottles and trash that were littered

from the city park next to his residence. Defendant testified that he did not recall seeing a vehicle

approaching his house, stating he did not remember “seeing Mr. Misner until after the incident

began.” Defendant reiterated that he did not see a vehicle near his house until it had stopped outside

of his home in the middle of the street.

¶ 23 When questioned about the events following the throwing of the water bottle, defendant

stated that Misner remarked to him, “Hey, we are trying to be cool with you here,” to which

defendant responded, “I’m so sorry,” and explained to Misner that he was collecting trash and

water bottles that had been discarded in his yard. Defendant further indicated that Misner made

another comment that was not derogatory; however, defendant was unable to recall the exact

words. At that point, defendant informed Misner, “I’m not even supposed to be talking to you,”

and subsequently left the scene. Defendant testified that after Misner drove away, he proceeded to

walk to the adjacent city park and collected trash.

¶ 24 Defendant then testified that later he looked out his front window and saw Officer

McKillop in the Misners’ driveway and thought that he was in trouble because his dog was off its

leash. Defendant stated that Officer McKillop had been to defendant’s residence before because

of the dog being off its leash. According to defendant, he knew he “only had a few fleeting seconds

to tell my side of the story to Officer McKillop.” Therefore, defendant “did the best I could to

10 explain it from my point of view, where I was, what happened, who was involved.” Defendant

testified that he only spoke with Officer McKillop and never spoke with Misner. When questioned

regarding what he told Officer McKillop, defendant reiterated that he was in his yard playing with

his dog and picking up trash and water bottles. Defendant continued, stating that there were enough

trash and water bottles that he began throwing them at his trash can to make a small pile to then

later throw them all away at the same time.

¶ 25 On cross-examination, defendant agreed that the SNCO directed him not to have contact

with Misner. Defendant further acknowledged the two security camera videos that were published

to the jury and admitted that he spoke with Misner on June 11, 2022. When questioned that he

admitted to coming within 50 feet of Misner, defendant explained that he believed he had “fair use

of Ash and 13th Street” based on the judge’s ruling in the SNCO because he and Misner lived next

to one another. According to defendant, the judge in the SNCO case allowed defendant to use Ash

and 13th Street as a “free citizen” but he could not use a nearby alleyway. When questioned

regarding his coming out in the street to Misner’s truck and being within 50 feet, defendant again

stated his belief that he could be on Ash Street because he would need to be on it to access his

home. Defendant agreed that he approached Misner’s passenger side window of the truck.

¶ 26 Regarding the throwing of the water bottle, defendant stated he did not throw the bottle at

Misner but rather at his own trash can. Defendant claimed the bottle was empty. Defendant

explained that he was nearsighted, wore glasses, and that he “couldn’t tell you one way or the other

who was driving that truck unless I was probably in 15 or 20 feet of that vehicle to actually look

inside to see.” Defendant stated that he threw the water bottle overhand but not hard enough to

leave his yard. According to defendant, the water bottle hit the trash can, hit the ground, and then

11 slid into the roadway on the ground. Defendant stated that he went into the roadway to Misner’s

truck to retrieve the water bottle because “he made a mistake” and “littered the road.”

¶ 27 Defendant then agreed that he left his property and walked down 13th Street while Officer

McKillop was talking with Misner. Defendant further testified regarding the trash from the

adjacent city park and his trying to clean up the trash and water bottles. Upon further questioning,

defendant admitted he was within 50 feet of Misner but reiterated that he went into the roadway to

pick up the water bottle, that Misner made the initial contact asking what defendant was doing,

and defendant explained that he was just picking up water bottles that he thought others from the

city park were throwing at his vehicles.

¶ 28 Defendant was then asked when he learned that there was security camera video of the

incident. In response, he stated that he knew he was being filmed probably two or three months

prior to the incident. He stated that about that time he stopped using his outside property because

he knew he was being surveilled, not only by Misner but other neighbors as well.

¶ 29 The defense rested and the State called Misner in rebuttal. Misner testified that after

defendant threw the water bottle, he never apologized to Misner. On cross-examination, Misner

again stated that although defendant was talking during that incident, Misner did not remember

what defendant had actually said. The State rested.

¶ 30 The trial court held a jury instructions conference. Since there were no IPI instructions for

the offense of violation of a stalking no contact order (720 ILCS 5/12-3.9 (West 2020)), the State

tendered modified instructions modeled on the IPI instructions for the offense of violation of an

order of protection (id. § 12-3.4). Defendant had no objection to either instruction. The modified

definition instruction tendered and given stated:

12 “A person commits the offense of unlawful violation of a stalking no contact order when,

having been served notice of the contents of a stalking no contact order, or otherwise having

acquired actual knowledge of the contents of the order, he commits an act which was

prohibited by a court in a stalking no contact order.”

The modified issues instruction tendered and given stated:

“To sustain the charge of unlawful violation of a stalking no contact order, the State

must prove the following propositions:

First Proposition: That the defendant had contact with Dustin Misner on or about

June 11, 2022; and

Second Proposition: That a stalking no contact order directed that the defendant

may not have contact with Dustin Misner; and

Third Proposition: That the stalking no contact order was in effect at the time the

defendant had contact with Dustin Misner; and

Fourth Proposition: That at the time the defendant had contact with Dustin Misner,

defendant had been served notice of the contents of the stalking no contact order or

otherwise had acquired actual knowledge of the contents of the order.

If you find from your consideration of all the evidence that each one of these

propositions has been proved beyond a reasonable doubt, you should find the defendant

guilty.

If you find from your consideration of all the evidence that any one of these

propositions has not been proved beyond a reasonable doubt, you should find the defendant

not guilty.”

13 ¶ 31 The State and defense counsel presented closing arguments. The State informed the jury of

the four elements necessary to prove a violation of the stalking no contact order. The State then

reiterated the testimony and evidence presented as they related to each element. The State argued

that as of June 11, 2022, the date of the incident, defendant admitted that he had been served with

and had knowledge of the contents of the SNCO. The State argued that the SNCO was in effect on

June 11, 2022, and that it directed that defendant not have any contact with Misner. The State

further argued that since defendant had been served with the SNCO, he acquired knowledge that

he was prohibited from having contact with Misner. The State argued that the evidence in the case

showed that defendant had qualifying “contact” with Misner that was prohibited under the SNCO.

The State specifically referenced the security camera video showing defendant throwing the water

bottle at Misner’s truck, approaching the truck, and then speaking with Misner. The State also

referenced the second security camera video showing defendant approaching Misner and his

residence as he was speaking with Officer McKillop. Further, the State referenced the testimony

of Officer McKillop that defendant directed comments towards Misner while he and Officer

McKillop spoke on the roadway and then again when defendant was being escorted to the officer’s

patrol vehicle. Lastly, the State referenced Officer McKillop’s testimony that defendant admitted

speaking with Misner, as well as defendant’s own admission during the trial that he had contact

with Misner on June 11, 2022.

¶ 32 Defendant began his closing argument referencing the benefits of having the security

camera videos in this particular case. Defendant reiterated that the SNCO prohibited defendant

from having any contact whatsoever with Misner. Defendant argued that in this case, defendant

and Misner lived across the street from each other which made it impossible for them to not have

any contact whatsoever with each other. Defendant turned to the first security camera video

14 regarding the incident with the water bottle. Defendant acknowledged that the route taken by

Misner was the direct route to travel to Walmart; however, defendant argued that Misner did not

have to take that route. Rather, argued defendant, Misner could have gone the other direction but

instead went directly towards defendant’s residence. Defendant then argued that defendant’s

throwing of the water bottle was not an unlawful initiation of the contact, but rather, it was Misner

who initiated the contact by stopping in the roadway after the water bottle was thrown. Defendant

argued that it was Misner who stopped his truck, engaged defendant, and spoke with defendant.

Defendant argued that, at that point, Misner could have driven off and left the scene without any

interaction. Further, defendant argued that rather than leaving the scene, Misner confirmed the

incident was captured via the security cameras and contacted the police.

¶ 33 Moving to the security camera video of defendant’s later interaction with Officer McKillop

and Misner, defendant argued that he was merely engaging the officer. Defendant acknowledged

that defendant made comments to Officer McKillop regarding Misner; however, Misner’s

testimony was that he did not hear what defendant was saying about Misner. Accordingly,

defendant argued that the comments he directed at Misner were not communicated successfully.

¶ 34 In rebuttal, the State argued that the initial contact in the case began by defendant throwing

the water bottle at Misner’s truck, rather than Misner’s stopping his truck and asking defendant a

question. The State argued that Misner’s question was a response to the throwing of the water

bottle by defendant. Further, the State argued that, regarding the circumstances, Misner acted

appropriately by contacting the police. The State again turned to the second incident where

defendant approached Misner and his residence without a valid reason. The State argued that the

SNCO prohibited defendant from having contact with Misner, not Misner having no contact with

defendant. Turning to defendant’s argument regarding defendant’s comments directed towards

15 Misner, the State argued that it did not matter that Misner could not hear what defendant’s

comments were. Rather, the State argued that Misner believed the comments were directed towards

him and that was sufficient contact that was prohibited by the SNCO.

¶ 35 During its deliberations the jury asked the trial court, “If the victim starts a contact by

stopping and the guys [sic], then talks to him, is that in violation of no contact since the victim

stopped and contacted him at his house?” By agreement of counsel, the trial court responded, “You

have the law as stated in the jury instructions. It is your duty to render a verdict based on the law

and evidence.” After 48 minutes of deliberation, the jury found defendant guilty of the offense of

VSNCO.

¶ 36 The trial court ordered the probation office to prepare a presentence investigation (PSI)

report and a psychological report. In the interview included within the PSI, defendant made various

claims regarding the representation of defense counsel. He claimed that his attorney did not do

anything for him and that he never met with him prior to court. He indicated that his attorney did

not want to fight for him and told him to take a plea agreement. The PSI that contained defendant’s

allegations against defense counsel was filed on December 21, 2022.

¶ 37 The trial court conducted a sentencing hearing on January 30, 2023, took the matter under

advisement, and reset the matter. On March 6, 2023, the matter reconvened and the trial court

sentenced defendant to one year of probation with various terms and conditions. The trial court

did not inquire regarding defendant’s allegations against trial counsel at either hearing. Defendant

did not file any posttrial motions. A timely notice of appeal was filed on March 7, 2023. This

appeal followed.

16 ¶ 38 II. ANALYSIS

¶ 39 Defendant raises two issues on appeal. Defendant argues that the trial court erred in that:

(1) the State’s modified IPI 11.77 and 11.78 were given in error and (2) the trial court erred in not

conducting an initial Krankel inquiry regarding his allegations of ineffective assistance of trial

counsel contained in the PSI. For the following reasons, we affirm the conviction but remand for

the limited purpose of a Krankel hearing.

¶ 40 A. Jury Instructions

¶ 41 Defendant was charged with the offense of VSNCO, which states in part:

“(a) A person commits violation of a stalking no contact order if:

(1) he or she knowingly commits an act which was prohibited by a court or fails to

commit an act which was ordered by a court in violation of:

(A) a remedy in a valid stalking no contact order of protection ***.”

(Emphasis added.) 720 ILCS 5/12-3.9(a)(1)(A) (West 2020).

¶ 42 Similarly, the violation of an order or protection statute (VOP) states in part:

“(a) A person commits violation of an order of protection if:

(1) He or she knowingly commits an act which was prohibited by a court or fails to

(i) a remedy in a valid order of protection ***.” (Emphasis added.) Id. § 12-

3.4(a)(1)(i).

¶ 43 Because no IPI was available for VSNCO, the parties agreed to utilize a modified version

of the IPIs for VOPs. More specifically, the IPI for VOP reads:

“A person commits the offense of violation of an order of protection when, having

been served notice of the contents of an order of protection, or otherwise having acquired

17 actual knowledge of the contents of the order, he commits an act which was prohibited by

a court in an order of protection.” Illinois Pattern Jury Instructions, Criminal, No. 11.77

(approved Dec. 8, 2011) (hereinafter IPI 11.77).

¶ 44 In this matter, the parties agreed to the following modification of IPI 11.77:

“A person commits the offense of unlawful violation of a stalking no contact order

when, having been served notice of the contents of a stalking no contact order, or otherwise

having acquired actual knowledge of the contents of the order, he commits an act which

was prohibited by a court in a stalking no contact order.”

The term “knowingly” is not included in the first line of either instruction. More specifically,

neither mirror their respective statutes to read “a person knowingly commits ***.”

¶ 45 Illinois Pattern Jury Instructions, Criminal, No. 11.78 (approved Dec. 8, 2011) (hereinafter

IPI 11.78), states in part:

“To sustain the charge of violation of an order of protection, the State must prove

the following propositions:

First Proposition: That the defendant __________ ; and

Second Proposition: That an order of protection prohibited the defendant from

performing [(that act) (those acts)];

[(or)]

Second Proposition: That an order of protection directed the defendant to perform

[(that act) (those acts)];

and

Third Proposition: That the order of protection was in effect at the time the

defendant ______; and

18 Fourth Proposition: That at the time the defendant ________, he had been served

notice of the contents of an order of protection or otherwise had acquired actual knowledge

of the contents of the order.”

¶ 46 The modified issues instruction tendered and given stated in part:

“To sustain the charge of unlawful violation of a stalking no contact order, the State

First Proposition: That the defendant had contact with Dustin Misner on or about

Second Proposition: That a stalking no contact order directed that the defendant

Third Proposition: That the stalking no contact order was in effect at the time the

Fourth Proposition: That at the time the defendant had contact with Dustin Misner,

defendant had been served notice of the contents of the stalking no contact order or

otherwise had acquired actual knowledge of the contents of the order.”

The term “knowingly” is not included in either instruction in the first proposition. More

specifically, neither read “the defendant knowingly ***.” For both IPI 11.77 and 11.78, the only

modification made for use in this matter was the substitution of “an order or protection” with “a

stalking no contact order.”

¶ 47 Defendant argues that the trial court violated his constitutional rights to due process and a

jury trial by omitting the term “knowingly” from the modified IPI instructions which did not align

with the definition used in the VSNCO statute. He contends that the omission of “knowingly”

effectively converted the VSNCO into an absolute liability offense. Defendant admits that defense

19 counsel did not object to the use of the modified IPIs nor did he raise it in a posttrial motion. He

maintains, however, that the issue can still be reviewed under both prongs of the plain error

doctrine. He asserts that an analysis under both prongs leads to a conclusion that error occurred.

Finally, defendant argues that he was deprived of the effective assistance of counsel when trial

counsel agreed to the modified IPIs and failed to raise the issue in a posttrial motion.

¶ 48 In response, the State first argues that defendant cannot complain of the omission of

“knowingly” as it was invited error. It maintains that defendant cannot appeal the issue because

trial counsel agreed to the use of the modified IPIs that did not include the term “knowingly.” The

State further contends that the complained-of error, since it was invited, cannot be subjected to a

plain error analysis. The State further asserts that the modified IPI instructions correctly stated the

law and, thus, their use was not an abuse of discretion. If we consider the issue under the plain

error doctrine, the State argues that because there was no error, there can be no plain error. In any

event, the State asserts, the omission does not satisfy either prong of the plain error doctrine.

Finally, the State contends that counsel was not ineffective because the choice of jury instructions

is a matter of trial strategy. It argues that defense counsel’s agreement to the modified IPIs was a

“thorough and well thought-out decision” and a “clear matter of strategy.” The State maintains

that defendant cannot prove both elements required in Strickland.

¶ 49 “[J]ury instructions ‘provide the jury with correct legal principles that apply to the

evidence, thus enabling the jury to reach a proper conclusion based on the applicable law and the

evidence presented.’ ” People v. Fane, 2021 IL 126715, ¶ 34 (quoting People v. Parker, 223 Ill.

2d 494, 500 (2006)). In this matter, we are asked to determine whether the tendered jury

instructions accurately conveyed the law. “Although the giving of jury instructions is generally

reviewed for an abuse of discretion, when the question is whether the jury instructions accurately

20 conveyed to the jury the law applicable to the case, our review is de novo.” People v. Pierce, 226

Ill. 2d 470, 475 (2007).

¶ 50 1. Invited Error

¶ 51 The State first contends that defendant is estopped from arguing that it was error for the

trial court to omit the term “knowingly” from the jury instructions because defense counsel agreed

to the proposed instructions, citing the invited error doctrine. Defendant disagrees, asserting that

defense counsel did not invite the error as he was not the one who tendered the modified IPIs or

“affirmatively acquiesce to the flawed instructions.” Rather, argues defendant, the instructions

were offered by the State and defense counsel did not object.

¶ 52 The doctrine of invited error “provides that a party may not request the court to proceed in

one manner and then argue on appeal that the requested action was error.” People v. Liekis, 2012

IL App (2d) 100774, ¶ 24. We agree with defendant that the invited error doctrine is inapplicable

to the case at bar. The State, not defendant, tendered the modified IPI. See People v. Coan, 2016

IL App (2d) 151036, ¶ 24 (where defendant did not invite error because he did not tender the

instruction nor because he did not object). Further, “[w]e reject the State’s suggestion that, because

defendant did not object to the instruction, he ‘agreed on the record to use the instruction.’ ” Id.

Consequently, we determine that the invited error doctrine is inapplicable to facts of the present

case and thus proceed to an analysis of the issues raised.

¶ 53 2. Plain Error

¶ 54 “[W]e will review unpreserved jury instruction errors pursuant to Illinois Supreme Court

Rule 451(c) (eff. Apr. 8, 2013), which provides that ‘substantial defects [in jury instructions] are

not waived by failure to make timely objections thereto if the interests of justice require.’ ‘Rule

451(c) is coextensive with the “plain error” clause of Supreme Court Rule 615(a), and we construe

21 these rules “identically.” ’ ” People v. Hartfield, 2022 IL 126729, ¶ 49 (quoting People v. Herron,

215 Ill. 2d 167, 175 (2005)). Illinois Supreme Court Rule 615(a) sets out the plain error rule as

follows: “Plain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). “ ‘[T]he plain-

error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious

error occurred and 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) a clear or

obvious error occurred and 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.’ ” In re N.H., 2016 IL App (1st) 152504, ¶ 75 (quoting People v. Piatkowski, 225 Ill. 2d

551, 565 (2007)). “Under both prongs of the plain-error doctrine, the defendant has the burden of

persuasion.” People v. Hillier, 237 Ill. 2d 539, 545 (2010). “The first step of any plain error review

is to determine whether any error occurred at all.” In re N.H., 2016 IL App (1st) 152504, ¶ 76. We

first address second prong plain error.

¶ 55 a. Second Prong Plain Error

¶ 56 Defendant contends that the tendering of the modified IPIs without including the term

“knowingly” amounted to a second prong plain error. Under the second prong of plain error

review, “the defendant must prove that there was plain error and that ‘the error was so serious that

it affected the fairness of the defendant’s trial and challenged the integrity of the judicial process.’ ”

People v. Johnson, 2021 IL App (1st) 190567, ¶ 13 (quoting People v. Herron, 215 Ill. 2d 167,

187 (2005)). This type of error is generally referred to as a structural error. People v. Ratliff, 2024

IL 129356, ¶ 37. “A structural error is one that “ ‘necessarily renders a criminal trial fundamentally

unfair or is an unreliable means of determining guilt or innocence.’ ” Id. (quoting People v.

22 Glasper, 234 Ill. 2d 173, 197-98 (2009)). “The second prong of the plain-error rule is ‘invoked

only in those exceptional circumstances where, despite the absence of objection, application of the

rule is necessary to preserve the integrity and reputation of the judicial process.’ ” People v. Artis,

232 Ill. 2d 156, 166 (2009) (quoting People v. Harvey, 211 Ill. 2d 368, 387 (2004)). The Supreme

Court has recognized errors as “ ‘structural,’ and thus subject to automatic reversal, only in a ‘very

limited class of cases.’ ” Neder v. United States, 527 U.S. 1, 8 (1999) (quoting Johnson v. United

States, 520 U.S. 461, 468-69 (1997)); see Gideon v. Wainwright, 372 U.S. 335 (1963) (complete

denial of counsel); Tumey v. Ohio, 273 U.S. 510 (1927) (biased trial judge financially benefitted

from conviction); Vasquez v. Hillery, 474 U.S. 254 (1986) (racial discrimination in selection of

grand jury); McKaskle v. Wiggins, 465 U.S. 168 (1984) (denial of self-representation at trial);

Waller v. Georgia, 467 U.S. 39 (1984) (denial of public trial). “Those errors deprive defendants

of basic protections, such that their trials are not a reliable vehicle for determining guilt.” Ratliff,

2024 IL 129356, ¶ 38. The question in this matter is whether the use of the modified IPIs without

including the term “knowingly” is a “violation akin to structural error, so it may be reviewed as

second-prong plain error, or is it akin to trial error, so it is subject to harmless error analysis and

may be reviewed only as first-prong plain error.” Id. ¶ 43.

¶ 57 In Sullivan v. Louisiana, 508 U.S. 275 (1993), the issue on appeal was whether a

“constitutionally deficient reasonable-doubt instruction may be harmless error.” Id. at 276. In its

analysis, the Supreme Court considered whether a jury instruction issue is automatically a

structural error requiring reversal or whether a harmless-error-type analysis would suffice. With

regard to the jury instruction it was analyzing, it stated:

“Insofar as the possibility of harmless-error review is concerned, the jury-

instruction error in this case is quite different from the jury-instruction error of erecting a

23 presumption regarding an element of the offense. A mandatory presumption—for example,

the presumption that a person intends the ordinary consequences of his voluntary acts—

violates the Fourteenth Amendment, because it may relieve the State of its burden of

proving all elements of the offense. [Citations.] But ‘[w]hen a jury is instructed to presume

malice from predicate facts, it still must find the existence of those facts beyond a

reasonable doubt.’ [Citation.] And when the latter facts ‘are so closely related to the

ultimate fact to be presumed that no rational jury could find those facts without also finding

that ultimate fact, making those findings is functionally equivalent to finding the element

required to be presumed.’ [Citations.] A reviewing court may thus be able to conclude that

the presumption played no significant role in the finding of guilt beyond a reasonable

doubt. [Citation.] But the essential connection to a ‘beyond a reasonable doubt’ factual

finding cannot be made where the instructional error consists of a misdescription of the

burden of proof, which vitiates all the jury’s findings.” (Emphasis in original.) Id. at 280-

81.

¶ 58 The same analysis applies in the case at bar. The actions on the part of defendant—throwing

the water bottle, speaking to Misner, and approaching Misner’s home—were done intentionally

and knowingly. No rational jury could find that defendant did all of these actions without knowing

he was doing them. As a result, these predicate facts, which are closely related to knowingly

committing a violation, leads to a determination that this presumption of knowledge “played no

significant role in the finding of guilt beyond a reasonable doubt.” Id. at 281. As a result, the use

of the IPIs in this matter, without including the term “knowingly,” does not amount to structural

error, and thus no second prong plain error exists.

24 ¶ 59 b. First Prong Plain Error

¶ 60 In addition to second prong plain error, defendant asserts that first prong plain error is

present. We begin our analysis of first prong plain error by a review of caselaw that addressed

similar situations. In People v. Hoffman, 2012 IL App (2d) 110462, the defendant was charged

with violating an order of protection. During the jury instruction conference, the State tendered IPI

11.77 and 11.78. Id. ¶¶ 5, 7. The defendant tendered an alternative to the instructions which

included language that the offense of violating an order of protection is not a strict liability offense

and that the State was required to prove a “guilty act” and a “guilty mind.” Id. ¶ 6. Over the

defendant’s objection, the trial court determined that the State’s jury instruction should be given.

Id. ¶ 7. The defendant was convicted and appealed. Id. ¶ 1. The issue on appeal was whether the

trial court erred in not tendering the defendant’s non-IPI jury instruction. Id. ¶ 8.

¶ 61 The appellate court noted that “in order to prove a defendant guilty of violating an order of

protection, the State must prove both the voluntary act and the appropriate mental state.” Id. ¶ 12.

The court found, however, that the tendered IPI instructions did properly instruct the jury with the

mental state necessary to find the defendant guilty of violating the order of protection. Id. The

order of protection statute in effect at the time stated in part “that a defendant violates an order of

protection when ‘[the] defendant (1) committed an act prohibited by an order of protection, or

failed to commit an act ordered by an order of protection, and (2) he had been served notice of or

otherwise acquired actual knowledge of the contents of the order.’ ” (Emphasis in original.) Id.

¶ 13 (quoting People v. Mandic, 325 Ill. App. 3d 544, 547 (2001), citing 720 ILCS 5/12-30(a)

(West 2000)). The court noted that the tendered instructions were in line with the statute, as when

read together, they “advised the jury that, in order to find defendant guilty of violating the order

of protection, the jury had to find that defendant was given notice of or otherwise had actual

25 knowledge of the contents of the order of protection, that the order of protection prohibited

defendant from contacting [victim], that defendant contacted [victim], and that the order of

protection was in effect when defendant contacted [victim].” Id. ¶ 14. The court concluded that

“[w]hen a defendant has knowledge of the contents of an order of protection, it necessarily follows

that, when he does some act in contravention of the terms of the order of protection, he does so

with knowledge that those acts are prohibited.” Id. ¶ 15. The court found that the tendered

instructions correctly stated the law and found that the trial court did not abuse its discretion when

it refused to tender the defendant’s non-IPI instruction. Id. ¶ 16.

¶ 62 Subsequent to that case, the VOP statute was amended in 2019 to add that the person had

to knowingly commit a prohibited act, in addition to having had actual knowledge of the contents

of the order of protection. IPI 11.77 and 11.78 were never modified to add the term “knowingly.”

¶ 63 In People v. Barwicki, 2024 IL App (2d) 230285-U, the defendant appealed his conviction

for violating an order of protection. One of the arguments on appeal pertained to the IPI

instructions for VOPs and the fact that they do not contain the term “knowingly.” Id. ¶ 20. The

appellate court found that while “it was arguably error to submit instructions that did not contain

both elements,” it did not amount to plain error. Id. ¶¶ 22-23. For that reason, and for reasons

unrelated to the case at bar, the appellate court affirmed the judgment.

¶ 64 In People v. Gupta, 2024 IL App (3d) 220349-U, the defendant was convicted of violating

a stalking no contact order. The jury instructions given by the trial court were modeled after IPI

11.77 and 11.78 and did not include the term “knowingly” before describing the act that defendant

allegedly committed. Id. ¶ 22. On appeal defendant argued that the trial court erred by tendering

jury instructions that inaccurately conveyed the law, which were admitted over the defendant’s

objection. Id. ¶¶ 45, 47. The appellate court discussed Hoffman and noted that it predated the

26 amendment to the VOP statute. Id. ¶ 53. The appellate court found that the trial court “erred by

submitting written instructions that did not require the jury to find that defendant knowingly

violated the Order to convict him.” Id. The court proceeded with a harmless error analysis and

ultimately determined that sufficient evidence was presented “for the jury to have found that

defendant knowingly” violated the terms of the order of protection, stating “when a defendant has

knowledge of the contents of an order or [sic] protection, it necessarily follows that any

contravention of the order is done while knowing that the act was prohibited.” Id. ¶¶ 64, 62. For

that reason, as well as others unrelated to the present matter, the appellate court affirmed the

judgment. 1 Id. ¶ 73.

¶ 65 Finally, in People v. Gittings, 2025 IL App (4th) 241445, the defendant appealed his

conviction for violating an order of protection, arguing that his counsel was ineffective for

tendering IPI 11.77 and 11.78 because they did not accurately reflect the law. Id. ¶ 43. Defense

counsel had tendered IPI 11.77 and 11.78 without objection by the State. Id. ¶¶ 32, 33. One of the

issues on appeal was the use of the tendered instructions in light of the amended language of the

order of protection statute. Id. ¶ 64. Defendant argued that neither instruction “accurately reflects

the law, which requires the State to prove that, in addition to his knowledge of the restrictions

imposed by the order of protection, defendant knowingly committed the acts alleged to have

violated the order.” (Emphasis in original.) Id. The appellate court agreed, stating that while IPI

11.77 instructs the jury regarding the required knowledge of the restrictions imposed, it does not

include “the mental state component” with regard to the conduct that constitutes a violation. Id.

¶ 71. The court noted that IPI 11.78 is flawed in the same respect. Id. ¶ 72. In other words, while

1 The appellate court vacated the judgment on one count due to violation of the one-act, one-crime doctrine. 27 the statute “has two distinct knowledge components (knowledge of the order and knowingly acting

in violation of it), the IPI instructions instruct on only one.” Id. ¶ 73. The court found that IPI 11.77

and 11.78 inaccurately state the law by not containing the term “knowingly.” Id. It pointed out that

the statute is not a strict liability statute and that “[t]he jury must be instructed that a defendant

violated the order [of] protection knowing that he or she was doing so.” (Emphasis in original.) Id.

¶ 66 The court discussed Hoffman and noted that it predated the 2019 amendment to the VOP

statute. Id. ¶ 75. It concluded that IPI 11.77 and 11.78 “do not accurately convey the present law

regarding the charge of violation of an order of protection” and urged the Illinois Supreme Court

Committee on Pattern Jury Instructions in Criminal Cases to consider updating IPI 11.77 and

11.78. Id. ¶ 76. Despite the foregoing, the appellate court affirmed the judgment, finding that no

prejudice for ineffective assistance of counsel purposes resulted from the “tendering of the jury

instructions that did not explicitly state the knowledge requirement with respect to his conduct.”

Id. ¶ 88.

¶ 67 While the preceding cases offer guidance in our analysis of the facts in the present matter,

we find it significant that they all, with the exception of Hoffman, were decided after the trial in

this matter. Of further note, in 2019, the VOP statute was amended and now emulates VSNCO in

terms of mental state; however, the IPIs for the newly amended VOP remains unchanged.

Specifically, the term “knowingly” was not incorporated to align with the addition of “knowingly”

in the VOP statute. These were the IPIs used by the trial court in modified form. Defendant does

not contend that it was an error to utilize and modify the VOP IPIs for VSNCO. Instead, he argues

that it was an error to omit “the mental state of ‘knowingly’ ” from the instructions. For the

following reasons, we disagree.

28 ¶ 68 First, we point out that the term “knowingly” was not “omitted” from the modified IPIs

used in this matter, as defendant repeatedly claims. Something is omitted when, either by neglect

or deliberately, it has been left out. The Law Dictionary. “Knowingly” was not a part of IPI 11.77

or 11.78, and therefore, it could never have been negligently or purposefully left out.

Characterizing the drafting of the modified IPI instructions in this matter to not include

“knowingly” as an omission infers that “knowingly” was always to be included, which is incorrect.

In any event, we will continue to use the term employed by defendant in our analysis for sake of

simplicity.

¶ 69 Second, as mentioned previously, the foregoing case authority holding that the term

“knowingly” should be included in IPI 11.77 and 11.78 arose subsequent to the trial of this matter.

Consequently, neither defense counsel nor the trial court was apprised of any case authority

holding in this manner. In other words, it is reasonable for the State, defense counsel, and the trial

court to have relied on the correctness of the IPIs and the case authority applicable at the time, i.e.,

Hoffman, which held that the IPIs properly instructed the jury. Additionally, Gittings, which was

decided three years after the trial in this matter, and which defendant strongly relies on, is

distinguishable from the present case. First and foremost, the defendant tendered the jury

instructions in that matter whereas here, the State tendered the instructions. Further, the appellate

court concluded that Barwicki, although an unpublished order, “should have put counsel on notice

that the two instructions at issue did not accurately reflect current law” and, “[g]iven the state of

the law at the time of trial, *** trial counsel’s tender of the two instructions was objectively

unreasonable.” Gittings, 2025 IL App (4th) 241445, ¶ 79. Here, as mentioned previously, defense

counsel, at the time of trial, only had Hoffman to rely on which held that the jury instructions

29 “correctly state the law applicable to a violation of an order of protection.” Hoffman, 2012 IL App

(2d) 110462, ¶ 16.

¶ 70 Third, at the time of the trial in this matter, the VOP statute and the VSNCO statute were

aligned in incorporating the term “knowingly.” Consequently, the omission of the term

“knowingly” in IPI 11.77 and 11.78 as well as the instructions given by the trial court patterned

after those IPIs applicable to VOPs does not warrant questioning. IPI 11.77 and 11.78 have been

in existence both prior to and since the amendments to the VOP statute in 2019, and reliance upon

it was both reasonable and justified.

¶ 71 Finally, the IPIs do instruct the jury that defendant must knowingly commit a violation. As

articulated in Hoffman, “[w]hen a defendant has knowledge of the contents of an order of

protection, it necessarily follows that, when he does some act in contravention of the terms of the

order of protection, he does so with the knowledge that those acts are prohibited.” Hoffman, 2012

IL App (2d) 110462, ¶ 15. “A person acts ‘knowingly when he is consciously aware that his

conduct is practically certain to cause the result’ ***.” People v. Dorsey, 2016 IL App (4th)

140734, ¶ 34 (quoting People v. Psichalinos, 229 Ill. App. 3d 1058, 1067 (1992)). Intent is seldom

proven through direct evidence, as it pertains to mental state. Id. “Instead, it may be proven by

circumstantial evidence, in that it may be inferred from surrounding circumstances and the

character of the defendant’s acts.” Id. Essentially, we can infer that defendant was aware that his

actions were prohibited, given his knowledge of the terms of the SNCO, and therefore actively

engaging in conduct contrary to those terms indicates a knowing violation of the law.

¶ 72 The State provided the instructions in this matter, which defendant did not contest. The

instructions utilized in this case mirrored those for VOPs, as the VOP statute aligns with the

VSNCO statute. The instructions for VOPs remained unchanged even after the VOP statute was

30 amended in 2019. The cases that arose after Hoffman support the principle that the term

“knowingly” should be incorporated into IPI 11.77 and 11.78. While we acknowledge the

foregoing post-Hoffman cases stand for the proposition that the term “knowingly” should be

included in IPI 11.77 and 11.78, given all the other considerations mentioned above, we find that

the modification of the instructions in this particular matter does not amount to error.

¶ 73 Nevertheless, assuming arguendo that we did find error, we do not conclude that defendant

was prejudiced. Under the first prong of plain error, defendant must demonstrate that “there was

plain error and that ‘the evidence was so closely balanced that the error alone severely threatened

to tip the scales of justice against him.’ ” Johnson, 2021 IL App (1st) 190567, ¶ 13 (quoting

Herron, 215 Ill. 2d at 187). Defendant asserts that the evidence was so closely balanced, given that

the parties were neighbors and that accidental contact was probable. He further observes that the

jury asked whether it constituted a violation, considering that Misner was the one who stopped and

communicated with defendant. This suggests, according to defendant, that the evidence was

closely balanced. We disagree with defendant on both points.

¶ 74 First, defendant contends that his belief in his lawful use of the street where the parties

reside, as well as his perception of such use, supports the assertion that the evidence was evenly

balanced. However, the lawful utilization of a street, such as driving through to arrive at a

destination, fundamentally differs from throwing plastic at a vehicle or directing words toward a

protected party. Defendant is undoubtedly permitted to use the street for driving purposes. In fact,

he testified that the trial court in the SNCO matter “allowed me to use Ash Street and 13th Street

as a free citizen but he denied me the use of the alleyway that connected, that ran in between Ash

and Beech Streets.” Given these parameters, however, defendant cannot interpret the use allowed

as justification for his actions in this particular case.

31 ¶ 75 Second, the evidence presented was not evenly balanced and was unfavorable to defendant.

The amended information alleged that defendant violated the SNCO by making contact with

Misner. The evidence presented indicated there were multiple instances where defendant made

contact with Misner, including throwing a water bottle at Misner’s vehicle, approaching the

vehicle, and engaging in a discussion with him. Furthermore, after Officer McKillop arrived,

defendant proceeded towards Misner’s residence and was subsequently stopped by Officer

McKillop. Officer McKillop testified that defendant had spoken words towards Misner and was

ultimately arrested for such conduct.

¶ 76 Defendant also acknowledged during the trial that he engaged in conversation with Misner.

He testified that after throwing the water bottle, he apologized to Misner and subsequently

explained to Misner the reason for collecting trash from his yard. He recognized that he was

instructed to have no contact with Misner and, during cross-examination, admitted that he did

speak to Misner.

¶ 77 In addition to testimonial evidence, the jury was provided with video evidence supporting

multiple contacts by defendant with Misner in violation of the SNCO. The video illustrates

defendant retrieving a water bottle from his front yard, and as Misner was executing a left turn in

front of defendant’s residence, defendant throws the water bottle towards his trash can and

Misner’s truck. Misner halts, and defendant proceeds into the street to pick up the water bottle,

subsequently approaching the passenger side door of Misner’s truck. There is ongoing

conversation as defendant, while walking away, continues to turn towards Misner’s truck and

gestures with his arms as if engaged in a dialogue.

¶ 78 The second video depicts defendant walking down the street towards Misner’s residence,

where Officer McKillop encounters him in the street. They engage in a conversation, and

32 immediately before his arrest, defendant turns his body and extends his arm as if speaking to an

unseen individual. Defendant was arrested at that juncture. Officer McKillop testified that the

decision to arrest defendant was made when defendant began directing comments towards Misner.

Both the testimonial and video evidence establish that defendant violated the terms of the SNCO

through at least four actions, thereby providing the jury with substantial evidence that defendant

violated the SNCO. The jury arrived at its verdict after only 48 minutes of deliberation. The lack

of “knowingly” in the jury instruction does not alter or diminish the overwhelming evidence that

defendant had multiple contacts with Misner.

¶ 79 Third, defendant asserts that the jury’s question indicates that the jury was “grappl[ing]

with whether [defendant] knowingly violated the order.” More specifically, the jury asked, “If the

victim starts a contact by stopping and the guys [sic], then talks to him, is that in violation of no

contact since the victim stopped and contacted him at his house?” However, inquiring whether it

constitutes a violation when a victim initiates contact is not equivalent to asking whether it is a

violation if defendant was unaware that his actions were violating the SNCO. The jury was not

scrutinizing defendant’s awareness of the unlawfulness of throwing the water bottle or speaking

with Misner on at least three separate occasions. Rather, the jury was examining Misner’s actions

from the standpoint of who initiated the first contact.

¶ 80 Finally, and most notably, defendant admitted that he informed Misner that he was not

supposed to be communicating with him. Misner testified that immediately following the incident

when defendant threw the water bottle, defendant told him that he was not supposed to be speaking

to him. Subsequently, when describing the interaction with Misner after the water bottle was

thrown, defendant testified that he told Misner, “I’m not even supposed to be talking to you.”

33 ¶ 81 Defendant contends that this case involved a credibility contest between the parties and

that, therefore, the jury instruction was the tipping point. A “credibility contest” exists when the

evidence in a case boils down to the testimony of witnesses presenting alternative versions of the

events, and no additional evidence is introduced to contradict or corroborate either version of

events. People v. Naylor, 229 Ill. 2d 584, 608-09 (2008). However, a “credibility contest” does not

apply in this case in light of the corroborating video evidence and both Misner and defendant’s

testimony that defendant admitted to Misner that he should not be engaging with him. Defendant’s

admission, both to Misner on the day of the incident and during the trial, clearly indicates that he

“knowingly” committed an act in violation of the SNCO.

¶ 82 “Under the first prong of plain-error analysis, ‘[w]hat makes an error prejudicial is the fact

that it occurred in a close case where its impact on the result was potentially dispositive.’ *** ‘The

only question in a first-prong case, once clear error has been established, is whether the evidence

is closely balanced.’ ” People v. Stevens, 2018 IL App (4th) 160138, ¶ 71 (quoting People v. Sebby,

2017 IL 119445, ¶¶ 68-69). Based on all the aforementioned overwhelming evidence of

defendant’s actions in violation of the SNCO, we find that defendant has not met his burden of

establishing that the evidence was closely balanced, and consequently, defendant has not met his

burden of proving plain error under the first prong.

¶ 83 B. Ineffective Assistance of Counsel

¶ 84 Defendant next asserts that he was deprived of the effective assistance of counsel because

defense counsel acquiesced to the use of the jury instructions, failed to request appropriate

instructions, and failed to raise the issue in a posttrial motion. “The benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a just result.”

34 Strickland v. Washington, 466 U.S. 668, 686 (1984). “[T]he proper standard for attorney

performance is that of reasonably effective assistance.” Id. at 687. “When a convicted defendant

complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s

representation fell below an objective standard of reasonableness.” Id. at 687-88. “[T]he

performance inquiry must be whether counsel’s assistance was reasonable considering all the

circumstances.” Id. at 688.

¶ 85 “A fair assessment of attorney performance requires that every effort be made to eliminate

the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged

conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the

difficulties inherent in making the evaluation, a court must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances, the challenged action

‘might be considered sound trial strategy.’ ” Id. at 689. “There are countless ways to provide

effective assistance in any given case. Even the best criminal defense attorneys would not defend

a particular client the same way.” Id. “An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on

the judgment. *** Accordingly, any deficiencies in counsel’s performance must be prejudicial to

the defense in order to constitute ineffective assistance under the Constitution.” Id. at 691-92.

¶ 86 “Even if a defendant shows that particular errors of counsel were unreasonable, *** the

defendant must show that they actually had an adverse effect on the defense.” Id. at 693. “It is not

enough for the defendant to show that the errors had some conceivable effect on the outcome of

the proceeding.” Id. “The defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

35 “In making the determination whether the specified errors resulted in the required prejudice, a

court should presume, absent challenge to the judgment on grounds of evidentiary insufficiency,

that the judge or jury acted according to law.” Id. “In making this determination, a court hearing

an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Id. at

695. “Whether counsel provided ineffective assistance is a mixed question of fact and law.” People

v. Davis, 353 Ill. App. 3d 790, 794 (2004). “[Reviewing courts] defer to the trial court’s findings

of fact, but [they] make an independent judgment about the ultimate legal issue.” Id.

¶ 87 Defendant contends that “[o]bjectively reasonable counsel would have ensured that the

jury was provided with the proper IPIs that reflected each element of the crime charged.” We

generally concur with this assertion but also find that defense counsel indeed fulfilled this

obligation. As previously stated, the IPIs employed in this case were adapted from those used for

VOPs. The IPIs relevant to the VOP statute does not incorporate the term “knowingly.” The VOP

statute parallels the SNCO statute. An objectively reasonable attorney would, upon comparing the

two statutes, recognize that they are identical with respect to the mental state. Given their similar

nature, it logically follows that the IPIs utilized for VOPs would also apply to VSNCOs.

¶ 88 Furthermore, the case law discussed above were decided after the trial in question.

Therefore, no argument can be made that defense counsel should have been put on notice of any

case authority holding that the term “knowingly” should be included in either the VOP or VSNCO

instructions. As discussed previously, Gittings, which was cited by defendant in his supplemental

brief, is distinguishable.

¶ 89 Additionally, defense counsel acknowledged that there were no IPIs for VSNCOs and that

a modified one would be used. The trial court even scheduled a special setting to discuss the issue

of jury instructions prior to the commencement of the jury trial. We were not provided with a

36 transcript of that instruction conference, but on the date of trial, the State withdrew the second

count, stating in part:

“Okay, with the understanding, I believe there was some debate about the jury instruction

as to the 50 feet so what we have agreed to do, there’s actually a definition of contact in

the Contact, No Stalking Order that we’re going to include in the jury instructions. I’m

going to argue he was within 50 feet. But in the context of that being contact, and

additionally the State would be alleging other contact as well. But I think that clarifies what

[defense counsel] is trying to say in regards to the intentionality or the knowingly having

The State acknowledged that defense counsel was concerned with instructing the jury that

defendant had to knowingly have contact with Misner, and the parties rectified it by modifying

some of the jury instructions, including the one that defined “contact.” “Generally, counsel’s

choice of what jury instructions to tender to the court is a matter of trial strategy.” People v.

Bruemmer, 2021 IL App (4th) 190877, ¶ 53.

¶ 90 Finally, since an objectively reasonable attorney would have relied upon IPI jury

instructions, it follows that they would not have objected to or raised the issue in a posttrial motion.

As a result, we conclude that defense counsel’s representation was not deficient; therefore,

defendant’s claim of ineffective assistance of counsel fails.

¶ 91 C. Krankel

¶ 92 Defendant next argues, and the State concurs, that this matter should be remanded for a

Krankel hearing. He contends that during the PSI interview, he complained that defense counsel

was not defending him. More specifically, he stated:

37 “My court appointed attorney didn’t do anything for me. I never met with him prior

to court. He worked with [the State] at the jury trial. Once there was video evidence my

attorney claimed I was guilty and the video is only about a minute long. Once it was

presented to [defense counsel] there was no fighting anything. It was take a plea agreement

or nothing at that point.”

¶ 93 When a defendant raises a pro se posttrial claim of ineffective assistance of trial counsel,

Illinois courts follow the common-law procedure as it has evolved from Krankel. People v. Ayres,

2017 IL 120071, ¶ 11. More specifically, when a defendant raises a claim of ineffective assistance

of counsel, the trial court should examine the factual basis of the defendant’s claim. People v.

Moore, 207 Ill. 2d 68, 77-78 (2003). “If the trial court determines that the claim lacks merit or

pertains only to matters of trial strategy, then the court need not appoint new counsel and may

deny the pro se motion. However, if the allegations show possible neglect of the case, new counsel

should be appointed.” Id. at 78.

¶ 94 Here, defendant expressed concerns to the probation officer during his PSI interview, who

subsequently documented defendant’s assertions and incorporated them into the PSI report. “ ‘[A]

pro se defendant is not required to do any more than bring his or her claim to the trial court’s

attention’ [citations], and thus, a defendant is not required to file a written motion [citation] but

may raise the issue orally [citation] or through a letter or note to the court [citation].” Ayres, 2017

IL 120071, ¶ 11 (quoting Moore, 207 Ill. 2d at 79). After the filing of the PSI, the matter was

scheduled for two court appearances. At the final court appearance before pronouncing the

sentence, the trial court stated that it had reviewed the PSI but made no remark regarding

defendant’s complaints concerning defense counsel and did not conduct any inquiry. Some

interchange between the trial court and counsel regarding the facts and circumstances concerning

38 the claims of ineffective assistance is usually necessary. Moore, 207 Ill. 2d at 78. Additionally, it

is common for a discussion to occur between the trial court and the defendant regarding the claims.

Id. “[T]he inquiry is not burdensome upon the circuit court, and the facts and circumstances

surrounding the claim will be much clearer in the minds of all involved when the inquiry is made

just subsequent to trial or plea, as opposed to years later on appeal.” Ayres, 2017 IL 120071, ¶ 21.

Here, no posttrial discussion was had with defendant regarding his allegations.

¶ 95 While defendant did not explicitly use the phrase “ineffective assistance of counsel” in his

communications with the interviewer, the allegations presented were sufficient to warrant an

inquiry under Krankel. A defendant is not required to file a specific motion; a letter or note directed

to the court is adequate. Id. ¶ 11. Defendant’s statements during the PSI interview included

multiple allegations against his attorney, which were incorporated into the PSI report and

submitted to the court. “ ‘Given that the court read the allegations of ineffectiveness, which were

made by defendant to a court employee for inclusion in a report prepared specifically for the court,

an inquiry under Krankel was warranted.’ ” In re Johnathan T., 2022 IL 127222, ¶ 50 (quoting

People v. Craig, 2020 IL App (2d) 170679, ¶ 18); see People v. Sherman, 2020 IL App (1st)

172162, ¶¶ 42-44 (finding that defendant’s ineffectiveness claim in a PSI, intended to be read by

the trial court, triggered a Krankel inquiry). We concur with the parties that the trial court failed to

conduct the necessary Krankel inquiry and, accordingly, remand this matter for the trial court to

perform a preliminary Krankel investigation.

¶ 96 III. CONCLUSION

¶ 97 For the foregoing reasons, we affirm the judgment of the circuit court of Clark County, but

remand for the limited purpose for the trial court to conduct a Krankel hearing.

¶ 98 Affirmed and remanded.