People v. Plowman

2020 IL App (5th) 170089-U

• Court: Appellate Court of Illinois
• Decided: October 8, 2020
• Docket: 5-17-0089
• Status: Unpublished

Opinion

NOTICE 2020 IL App (5th) 170089-U NOTICE Decision filed 10/08/20. The This order was filed under text of this decision may be NO. 5-17-0089 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party 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, ) Lawrence County. ) v. ) No. 16-CF-81 ) STEVEN F. PLOWMAN, ) Honorable ) Robert M. Hopkins, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________

JUSTICE BARBERIS delivered the judgment of the court. Justices Overstreet and Wharton concurred in the judgment.

ORDER

¶1 Held: We affirmed defendant’s conviction for possession of methamphetamine where (1) the circuit court failed to comply with Illinois Supreme Court Rule 431(b), but the error did not amount to plain error; (2) the admission of other-crimes evidence did not amount to plain error or ineffective assistance of counsel; and (3) the court did not err by refusing to instruct the jury on possession as a voluntary act.

¶2 Following a jury trial, defendant, Steven F. Plowman, was found guilty of

unlawful possession of less than five grams of methamphetamine, a Class 3 felony (720

ILCS 646/60(b)(1) (West 2014)), and sentenced by the circuit court of Lawrence County

1 to six years’ imprisonment. 1 Defendant appeals, arguing that he was denied a fair trial

where the court (1) failed to comply with Illinois Supreme Court Rule 431(b) (eff. July 1,

2012) during voir dire, (2) improperly admitted other-crimes evidence, and (3) refused to

instruct the jury on possession as a voluntary act (see Illinois Pattern Jury Instructions,

Criminal, No. 4.15 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 4.15)). For the

following reasons, we affirm.

¶3 I. Background

¶4 On July 1, 2016, the Lawrence County Sheriff’s Department executed a search

warrant at a residence located at 6437 Castle Road in Lawrenceville, Illinois. After

entering the residence, law enforcement officers located and detained six individuals:

defendant; two of defendant’s relatives, Luella and Shirley Plowman; defendant’s friend,

Phyllis Riker (n/k/a Phyllis Morgan), who lived at the residence; Riker’s son, Chad

Morgan, who the search warrant identified as the owner of the residence; and Morgan’s

girlfriend, April Cox, who lived with Morgan at the residence. During the search, officers

recovered multiple drug-related items from the north bedroom and living room area of

the residence, including several items of drug paraphernalia containing methamphetamine

residue. Following the search, defendant, Morgan and Cox were arrested and transported

to the Lawrence County jail.

1 Defendant was sentenced pursuant to 720 ILCS 646/100(a) (West 2014) (“Any person convicted of a second or subsequent offense under this Act may be sentenced to imprisonment for a term up to twice the maximum term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.”). 2 ¶5 On July 6, 2016, the State charged defendant by information with one count of

unlawful possession of methamphetamine, alleging that defendant knowingly possessed

less than five grams of methamphetamine or a substance containing methamphetamine on

July 1, 2016. Defendant waived his right to a preliminary hearing, entered a plea of not

guilty and elected to proceed to a jury trial.

¶6 Prior to trial, the State filed a motion in limine to exclude Riker’s “inadmissible

hearsay” testimony regarding Cox’s purported statements that claimed ownership of all

of the methamphetamine found at the residence. Defendant also filed a motion in limine

to exclude evidence of his “prior criminal convictions and other alleged ‘bad acts’ ” for

any purpose at trial, including impeachment. Defendant’s motion did not specifically

identify the prior criminal convictions and other alleged bad acts or pending charges he

sought to exclude.

¶7 On February 6, 2017, the case proceeded to a two-day jury trial. Before voir dire,

the circuit court addressed the motions in limine. The court reserved ruling on the State’s

motion, as the defense planned to call Cox as a witness. With regard to defendant’s

motion, the court ruled that defendant’s prior convictions for “Possession of Anhydrous

Ammonia and Meth Manufacturing” would be admitted for the limited purpose of

impeaching defendant’s credibility if he testified at trial.

¶8 During voir dire, the circuit court questioned potential jurors in two panels of 14.

In questioning the first panel, the court made the following statements regarding the Zehr

principles (see People v. Zehr, 103 Ill. 2d 472 (1984)) set forth in Supreme Court Rule

431(b): 3 “So I’m going to have to ask a series of four questions, and these questions have to do with the burden of proof and aspects of that. And so I will ask this question, and I’ll take them one at a time. And as I ask that question, then I’ll ask everybody that same question, so listen very carefully. The law is that a defendant is presumed innocent of the charge against him or her. If you are—serve as a juror on this case, you will be required to follow that law. The principle is that a defendant is presumed innocent of the charge against him or her unless and until the charge has been proven against [d]efendant beyond a reasonable doubt.”

The court then individually asked each potential juror if they understood that principle

and if they could follow that principle. After eliciting responses from each potential juror,

the court stated the “next principle is that before a defendant can be convicted, the State

must prove the defendant guilty beyond a reasonable doubt.” The court, again,

individually asked each potential juror if they understood that principle and if they could

follow it, and each potential juror responded in the affirmative. In addressing the third

principle, the court stated that a “defendant is not required to offer any evidence on his or

her own behalf.” Each potential juror again affirmed that they both understood and could

follow the third principle. In addressing the fourth and final principle, the court stated

“that the defendant’s failure to testify cannot be held against him or her.” The court,

again, asked, and each individual juror affirmed, that they both understood and could

follow the fourth principle. Defense counsel did not object to the admonishments given to

the first panel. The parties were provided an opportunity to question the first panel of

potential jurors before proceeding to the strike conference.

¶9 During the strike conference, six potential jurors were stricken from the first panel

and, following a brief recess, the circuit court asked the circuit clerk to call a second

4 panel of 14 potential jurors. In addressing the second panel, the court explained the nature

of the charge against defendant but stated:

“The fact that a criminal information has been filed against the defendant does not mean the defendant is guilty. The State has the burden of proving the charge against the defendant beyond a reasonable doubt. If you were called on to decide this case, you must do so on the basis of the law and the evidence in this case. Whatever may have happened in some other case you heard about or read about must have no effect upon your consideration of this case. I will ask a series of questions. As I indicated, if your answer is ‘yes’, please raise your hand. If your answer is ‘no’, leave it down. If you can’t understand what I’m saying, need it rephrased or somehow re-asked, raise your hand and I’ll inquire.”

The court proceeded to inquire whether any potential juror in the second panel knew

defendant or any of the witnesses or attorneys involved in the case.

¶ 10 Next, the State questioned the second panel of potential jurors. The State

explained its burden of proof, and then individually asked each potential juror if they

would have a problem signing a guilty verdict if the charges were proven beyond a

reasonable doubt. Each potential juror responded, “No.” The circuit court, in an attempt

to comply with Supreme Court Rule 431(b), said to the second panel:

“I will ask about certain principles. I believe the state’s [attorney has] already covered one, and that is that before a defendant can be convicted, the State must prove the defendant guilty beyond a reasonable doubt. I believe you’ve all been inquired as to that. I will ask about the other three, though. One of the principles of our constitution and which is applied in cases of the State of Illinois of a criminal nature is that the defendant is presumed innocent of the charge against him or her. So the burden of proof is on the State. One [sic] again, the principle is that the defendant is presumed innocent of the charge against him or her.”

The court proceeded to ask the first potential juror if he understood that principle and if

he could apply that principle if called to serve on the jury. The first potential juror

responded in the affirmative to both questions. The court proceeded in a different manner 5 in questioning the remainder of the second panel. Specifically, the court called the name

of each potential juror, and then individually asked each juror if they had the “[s]ame

answers?” Each potential juror first responded affirmatively to their name and then

affirmed that they had the same answers as the first potential juror.

¶ 11 In admonishing the second panel of the other two principles—a defendant is not

required to offer any evidence on his or her own behalf and a defendant’s failure to testify

cannot be held against him or her—the circuit court reiterated that the jury would be

required to find defendant not guilty if the State rested without meeting its burden of

proving defendant guilty beyond a reasonable doubt, regardless of whether defendant

decided to present evidence or testify on his own behalf. After reading each principle

aloud, the court again asked the first potential juror if he understood that principle and if

he could apply it if selected. The first potential juror responded in the affirmative to both

questions. In questioning the remainder of the second panel, the court called each

potential juror’s name and elicited an affirmative response. Defense counsel did not

object to the admonishments given to the second panel of potential jurors. After a jury

was selected and sworn, the following evidence was presented at defendant’s trial.

¶ 12 Nicholas Earnst, a former Lawrence County sheriff’s deputy involved in the

execution of the search warrant on July 1, 2016, testified to the following details. At

approximately 9:30 p.m. on that date, Earnst arrived at the residence in Lawrenceville

with four other officers: two Lawrence County deputies, Danny Ash and Byron

Middlecoat; a Bridgeport police officer, Jordan Feutz; and a Sumner police officer, J.D.

Decker. Ash and Feutz remained stationed outside to ensure that no one fled the 6 residence, while Earnst, Middlecoat and Decker knocked on the front door and

announced their presence. When no one answered after approximately 10 seconds,

Decker used a ram tool to force entry into the residence.

¶ 13 The officers entered the residence and immediately located defendant, Riker,

Luella and Shirley in the living room area. While Earnst supervised the four individuals

in the living room, Middlecoat and Decker located Morgan and Cox in the north

bedroom. After Morgan and Cox were handcuffed and brought into the living room,

Earnst advised the six individuals of their Miranda rights. See Miranda v. Arizona, 384

U.S. 436 (1966). Decker then supervised the six individuals while Earnst, Middlecoat and

Feutz began searching the residence.

¶ 14 While searching the north bedroom, Earnst and Middlecoat found digital scales,

coffee filters, and multiple clear, glass pipes covered with white residue. Meanwhile,

Feutz discovered two bags, one green and one red, sitting on the living room floor, which

defendant claimed belonged to him. Earnst returned to the living room after learning that

Feutz found a digital scale in the green bag, and a clear, glass pipe and plastic baggie in

the red bag. In examining these items, Earnst noted that the pipe had been used because

the inside was covered in residue. Based on his past experience, Earnst believed the pipe

was a “methamphetamine pipe.” Earnst identified the clear, glass pipe, contained in the

bag, marked as State’s Exhibit No. 1, as the same pipe Feutz found in the red bag.

¶ 15 Earnst testified that he searched defendant’s person before questioning defendant

about the items recovered from his bags. During the search of defendant’s person, Earnst

found a purple pipe covered with a burnt, black residue, along with a baggie of a green 7 leafy substance resembling cannabis, in defendant’s front, right pocket. Defendant

immediately admitted ownership of the items recovered from his pocket. When Earnst

questioned defendant about the items discovered in his bags, defendant admitted

ownership of the digital scale found in the green bag but initially denied ownership of the

clear, glass pipe and plastic baggie found in the red bag. When Earnst asked defendant “if

he was to be urine tested would he test positive for methamphetamine,” defendant

responded in the affirmative. Earnst then again asked defendant, who was crying,

sweating and shaking, if the pipe and baggie found in the red bag belonged to him and

defendant “advised the items were his.” Defense counsel did not object to Earnst’s

testimony regarding the search of defendant’s person and the statements defendant made

when questioned.

¶ 16 Defendant, Cox and Morgan were arrested and transported to the Lawrence

County jail. Earnst then collected the items found in the north bedroom. Earnst put the

items in separate evidence bags, sealed each individual bag and then placed the bags in

his locked squad car. He went back inside the residence and collected the items found in

the living room. He put the items in separate bags, sealed each individual bag and then

placed the bags with the other bags in his locked car.

¶ 17 After clearing the residence, Earnst drove to the Lawrence County jail where he

filled out charges on defendant, Cox and Morgan. Earnst next filled out two evidence

inventory receipts for the items collected during the search and placed the items in his

assigned locker in the evidence room located in the basement of the Lawrence County

8 Courthouse. The items remained in his evidence locker until Feutz transported the items

to the forensic lab on August 24, 2016.

¶ 18 Earnst identified State’s Exhibit No. 2 as the evidence inventory receipt listing the

items recovered from the north bedroom on July 1, 2016. Next, Earnst identified State’s

Exhibit No. 3 as the evidence inventory receipt listing the items recovered from the

defendant’s person and the defendant’s bags, on July 1, 2016. State’s Exhibit No. 3 listed

the following items: one clear, glass pipe; one clear, plastic baggie with white residue;

one scale; one baggie of a green leafy substance, weighing approximately six grams; and

one purple pipe with burnt, black residue. The circuit court admitted both exhibits over

defendant’s objection.

¶ 19 On cross-examination, defense counsel specifically questioned Earnst about

defendant’s responses to Earnst’s questions during the search:

“Q. You said you ask—asked [defendant] some questions. He—he admitted that apparent cannabis was his; is that right? A. Cannabis and pipe. Yes. Q. And you said he admitted to you that the scales were his; is that right? A. That is correct. Q. But he told you that the pipe, the glass pipe, was not his; is that correct? A. That is correct.”

¶ 20 Next, Middlecoat and Decker both testified regarding their involvement in the

execution of the search warrant. Their respective testimonies largely corroborated

Earnst’s testimony. Middlecoat testified that the officers “banged on the door three

times” before gaining entry to the residence, and that, shortly after gaining entry, he

entered the north bedroom and located Morgan and Cox. Middlecoat recalled that

Morgan and Cox were both handcuffed and patted down before joining the other 9 individuals in the living room area. Middlecoat observed multiple items of drug

paraphernalia commonly associated with the use of methamphetamine in the north

bedroom. Middlecoat explained that Earnst was responsible for collecting the items

recovered during the search. Decker testified that he remained in the living room area

while the other officers searched the residence.

¶ 21 Feutz then testified regarding his involvement in the execution of the search

warrant. Feutz initially guarded the perimeter to ensure no one fled when the other

officers entered the residence. When Feutz entered the residence, he observed six

individuals, including defendant, detained in the living room area. While searching the

living room area of the residence, he discovered a red bag and a green bag sitting on the

floor. When Officer Feutz asked defendant if the bags were his, defendant responded in

the affirmative. Officer Feutz then searched the green bag and discovered various items,

including a digital scale. In the bottom of the red bag, he discovered a pipe and “a little,

clear, cut bag.” Feutz observed that the pipe contained a residue, which he believed to be

methamphetamine based on his experience. As Feutz pulled the pipe from the bag,

defendant became physically upset and stated that the pipe did not belong to him. Feutz

notified Earnst of the items he found in the bags and Earnst collected the items. Feutz

then transported defendant to the jail.

¶ 22 On August 24, 2016, Feutz received certain items recovered during the search,

including the pipe, from Earnst for transport to the forensic lab, and Feutz delivered the

items to the lab the following day. Feutz identified State’s Exhibit No. 1 as the pipe he

found in defendant’s red bag. 10 ¶ 23 Marla Spangler, a forensic chemist employed by the Illinois State Police Crime

Lab, testified to the following details. Spangler’s job duties primarily consist of analyzing

evidence for the presence of controlled substances. On August 25, 2016, she received an

evidence bag, along with a corresponding evidence inventory receipt, from the Lawrence

County Sheriff’s Department. The receipt described the evidence contained in the

evidence bag as a clear, plastic bag and a clear, glass pipe. While the receipt listed the

agent’s case number, Spangler added a separate laboratory case number and signed the

receipt. Spangler identified the glass pipe contained in the bag, marked as State’s Exhibit

No. 1, as the same glass pipe she received on August 25, 2016. After receiving the

evidence on August 25, 2016, she placed the evidence in “the vault” but retrieved it later

that day to perform her analysis.

¶ 24 Spangler described the procedure she followed in testing the items as follows. She

first cut through the seal at the bottom of the bag to gain access to the items. She next

conducted her analysis of the residue found on the evidentiary items, which consisted of a

preliminary color test and a confirmation test using a gas chromatograph mass

spectrometer. The results from these tests led Spangler to conclude that the glass pipe

contained methamphetamine residue. Spangler then resealed and initialed the evidence

bag before placing it back in the vault. The evidence bag was picked up on January 25,

2017. Spangler also generated a report detailing her findings. Spangler identified the

report, marked as State’s Exhibit No. 5, as the same report she generated in her analysis

of the glass pipe. State’s Exhibit No. 1 was then admitted into evidence without

11 objection, and State’s Exhibit No. 5 was admitted into evidence over defendant’s

objection.

¶ 25 On cross-examination, Spangler explained that the pipe was originally covered in

a white, cloudy residue. However, she “did a menthol rinse of the pipe” to test the

residue, which also leaves a white, smokey residue. Spangler did not perform any DNA

or fingerprint analyses on the pipe, although the lab has the ability to perform such

analysis.

¶ 26 After the State rested, defendant moved for a directed verdict. The circuit court

denied the motion, finding there was sufficient evidence for the case to go to the jury.

¶ 27 Cox then testified to the following details on defendant’s behalf. At the time of

trial, Cox was incarcerated in the Lawrence County jail for charges stemming from the

search warrant that was executed on July 1, 2016. While Cox recognized she had the

right not to testify, she wanted to testify because she was “going to tell the truth.” When

officers entered the residence to execute the search warrant, she was asleep in the north

bedroom. Cox claimed that all of the methamphetamine-related items officers found at

the residence belonged to her, including the items found in the red bag on the living room

floor. Cox explained that she had been using the pipe and baggie to get high in the living

room of the residence earlier that day but threw the items inside of the red bag when

someone knocked on the door and startled her. She hid the items in the red bag because

she did not want anyone to know she was “using” at that time and it was “the only place”

she could find to hide the items. Cox did not know who owned the red bag at that time

and forgot about the items. When asked to identify the items marked as the State’s 12 Exhibit No. 1, Cox described a “pipe and a container.” Cox claimed that the pipe was the

same pipe she put in the red bag.

¶ 28 On cross-examination, Cox identified a written statement, marked as State’s

Exhibit No. 7, as the statement that she prepared when she “got out of jail the first time.”

The statement was written on a voluntary statement form Cox obtained from the jail after

she pled guilty in her case. Cox prepared the statement at her friend’s house but claimed

no one was present when she prepared the statement. She then gave the statement to

Riker, who returned the statement to police. Cox had known Riker for three years and

had dated her son, Morgan. Riker occasionally brought Cox money at the jail.

¶ 29 The State then questioned Cox about her claim that she had placed the pipe in the

red bag earlier that day:

“Q. So someone knocks at the door, and you don’t take this pipe into the bedroom and put it with the other items? You just throw it on top of the bag? A. No. I was asleep. I did that earlier that day. Q. Did what earlier that day? A. Put that in the bag. Q. At what point did you put it in the bag. A. In the morning. Q. About what time? A. About 11. Q. And that was on what date? A. It would be the last day of June. Q. So the day before? A. No. The 1st. Sorry. 1st. Yes. That morning. Q. Now, do you recognize the container that was in that bag? A. Yes, I do. Q. And where did you see that? A. That was in the bag. Q. That was in the bag, also? A. Uh-huh.

13 Q. So earlier you testified that the—you placed the pipe and a baggy in it, but now also the container? A. Yes. And the container.”

The State then returned to questioning Cox about the written statement she provided to

police. Cox admitted that she had been released from jail after pleading guilty to unlawful

possession of methamphetamine, but she was taken back into custody after failing two

drug tests in violation of a court order. While Cox claimed ownership of specific items

officers recovered from the north bedroom in her statement, she acknowledged that her

statement made no mention of the pipe and baggie found in the red bag. Cox claimed that

she remembered putting the pipe and baggie in the red bag but did not mention those

items in her statement because she was “charged with just the pipes in the bedroom.”

¶ 30 State’s Exhibit No. 7 was admitted into evidence without objection. Cox’s written

statement contained her signature and listed her address as “6437 Castle Road.” Riker

signed Cox’s written statement as a witness before a notary at the police department on

August 12, 2016.

¶ 31 Riker testified to the following details on defendant’s behalf. Riker became

acquainted with defendant years ago when he dated her daughter. When the relationship

between defendant and her daughter ended, Riker and defendant maintained a friendship

and the two had become good friends over the years. Riker lived by herself at the

residence but had temporarily moved defendant’s “mom and sister in with [her] because

their house burnt.”

¶ 32 Riker testified that, on the morning of July 1, 2016, she drove her vehicle to

defendant’s house on Dubois Street in Lawrenceville. Defendant had been sleeping in his 14 van because his house had been damaged in a fire. When she arrived, defendant was

“cleaning up the place” so he could put a trailer on the property. She drove defendant,

who was unable to drive, to the consignment store where he had “stuff” he was trying to

sell. At the consignment store, Riker assisted defendant in packing various items into a

“camouflage backpack” and a red drawstring bag. They left the consignment store with

the two bags, and Riker drove defendant back to his house on Dubois Street. Riker denied

seeing the pipe and baggie in the bags and claimed she would not have allowed the bags

in her car if she had seen such items. Riker dropped defendant off at his house so he

could finish cleaning but planned on picking him up later that evening so he could

shower and “get something to eat” at her house. Defendant left the two bags on the back

seat floorboard of Riker’s vehicle “because he wanted to go through them when he got to

[her] house later on that night.”

¶ 33 Riker returned home before noon and took the bags inside the house, where

Morgan, Cox and one of Riker’s friends were talking. After placing both bags against the

far wall in her front room, Riker went to her bedroom to change clothes because she was

tired, and she knew she had to “pick [defendant] up about 10:00 or whenever it was that

[she] had to go pick him up.” Riker’s daughter later came to the house and borrowed

Riker’s car. When defendant subsequently called Riker “so he could talk to his mom,”

she advised that she did not have a car to pick him up. At defendant’s suggestion, Riker

had a friend drive her to defendant’s residence so she could drive defendant back to her

house in his van.

15 ¶ 34 When they returned to her house, she fixed defendant a sandwich while he

conversed with Luella and Shirley in the living room area. Riker noticed that Morgan and

Cox were asleep in Morgan’s bedroom, so she turned off the light and shut the bedroom

door before joining defendant, Luella and Shirley in the living room area. While sitting in

the living room, Riker observed “a tall guy” walk into her house “without knocking” and

walk right back outside. She then heard a knock, and someone say, “Lawrence County

Police Department.” When Riker opened the door, an officer directed her to get on the

floor and she complied.

¶ 35 On cross-examination, Riker acknowledged that there were a few items in the

bottom of the red bag before she assisted defendant in packing additional items into the

bag at the consignment store. She admitted that she did not look through those items and

that it was possible the pipe and baggie could have been in the bottom of the red bag.

Riker recalled that, when she returned home, her daughter, Morgan and Cox were at her

house with a man and woman. Riker also recalled that, after she used the restroom and

changed clothes in her bedroom, the woman gave her a ride to defendant’s residence to

pick up the van. Riker returned home with defendant around 9 p.m. or 10 p.m. that

evening. Riker believed no one had touched the bags because they were exactly where

she had left them but acknowledged that someone could have “touched them when [she]

was gone.”

¶ 36 After the defense rested, the State called Spangler as a rebuttal witness. When

asked to identify each item contained in the bag marked as State’s Exhibit No. 1,

Spangler identified two items—“a glass pipe” and “a little, glass vial with a little bit of 16 liquid.” Spangler clarified that the glass vial was not in the bag with the glass pipe when

she received the evidence bag. Spangler explained that she used the glass vial in her

analysis and had placed the glass vial in the bag with the glass pipe following her

analysis. Spangler explained that the glass vial contained the unused portion of the

menthol rinse she had applied to the pipe, and that she had labeled the vial with the case

number before placing it back in the bag.

¶ 37 After both parties rested, the defense renewed the motion for a directed verdict.

The circuit court denied the motion, finding that the case depended on the credibility of

Cox and Riker, which was a question for the jury.

¶ 38 At the jury instruction conference, defendant requested the circuit court instruct

the jury pursuant to IPI Criminal 4th No. 4.15, which defines when possession is a

voluntary act. Defendant’s proposed instruction provided that “[p]ossession is a voluntary

act if the person knowingly procured or received the thing possessed, or was aware of his

control of thing for a sufficient time to have been able to terminate his possession.” The

State objected, arguing that defendant’s proposed instruction was irrelevant “with

possession as a voluntary act” and “State’s IPI 4.16” (see Illinois Pattern Jury

Instructions, Criminal, No. 4.16 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 4.16))

sufficiently covered the definition of possession. IPI Criminal 4th No. 4.16 provided that

“[p]ossession may be actual or constructive” and that constructive possession occurs

when the person lacks actual possession, which occurs when a person has immediate and

exclusive control over a thing, but “has both the power and the intention to exercise

control over a thing either directly or through another person.” Defendant argued the jury 17 could conclude from the evidence that he was unaware of the presence of the items found

in his bag and, thus, his proposed instruction would clarify that he had “to have either

knowingly procured or received it or have been at least aware that he was in control of

it.” The court refused defendant’s proposed instruction, finding the instruction confusing.

The court also found that the jury had “enough common sense to understand that if he

didn’t put it in there, it’s not his.”

¶ 39 The State’s closing argument highlighted the evidence showing that defendant

admitted ownership of the red bag and the glass pipe found therein. The State also noted

“a mountain of problems with [Cox’s] testimony” and again reiterated that defendant

“admitted the pipe was his.” In turn, the defense highlighted the evidence showing that

defendant was not nervous at the outset of the search and readily admitted that the red

bag belonged to him. The defense argued that defendant was surprised by the discovery

of the pipe, as evidenced by the change in his demeanor, and would not have admitted

ownership of the bags had he known the pipe was inside.

¶ 40 Following deliberation, the jury found defendant guilty of unlawful possession of

methamphetamine. Defendant filed a motion for new trial, alleging, inter alia, that the

circuit court erred by denying his motion in limine and refusing his tendered jury

instruction, IPI Criminal 4th No. 4.15. The court denied the motion following a hearing.

The court subsequently sentenced defendant to six years’ imprisonment. Defendant filed

a timely notice of appeal.

18 ¶ 41 II. Analysis

¶ 42 A. Rule 431(b)

¶ 43 Defendant first contends that the circuit court committed reversible error by failing

to strictly comply with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012). Defendant

acknowledges that he forfeited review of this issue by failing to object during voir dire

and failing to include the issue in his posttrial motion. See People v. Belknap, 2014 IL

117094, ¶ 66 (“To preserve an alleged error for review, a defendant must both make an

objection at trial and include the issue in a posttrial motion.”). Nevertheless, he asserts

that this court may review the issue under the plain-error doctrine because the court

clearly erred and the evidence was closely balanced.

¶ 44 The plain-error doctrine provides a “narrow and limited exception” to the

forfeiture rules. People v. Hillier, 237 Ill. 2d 539, 545 (2010). The plain-error doctrine

permits review of a forfeited claim when a clear or obvious error occurred and either

(1) “the evidence is so closely balanced that the error alone threatened to tip the scales of

justice against the defendant, regardless of the seriousness of the error,” or (2) “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.” People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (citing

People v. Herron, 215 Ill. 2d 167, 186-87 (2005)). A defendant bears the burden of

establishing plain-error review is proper. Hillier, 237 Ill. 2d at 545. “The ultimate

question of whether a forfeited claim is reviewable as plain error is a question of law that

is reviewed de novo.” People v. Johnson, 238 Ill. 2d 478, 485 (2010). 19 ¶ 45 The first analytical step under either prong of the plain-error doctrine is to

determine whether a clear or obvious error occurred. People v. Sebby, 2017 IL 119445,

¶ 49. Defendant specifically argues, and the State concedes, that the circuit court erred by

failing to strictly comply with the requirements set forth in Supreme Court Rule 431(b)

when it admonished the second panel of jurors of during voir dire. Supreme Court Rule

431(b) requires that the court ask every prospective juror whether he or she “understands

and accepts” the following four principles:

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

(2) that before a defendant can be convicted the State must prove the defendant

guilty beyond a reasonable doubt; (3) that the defendant is not required to offer

any evidence on his or her own behalf; and (4) that if a defendant does not testify

it cannot be held against him or her ***.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012).

A court must provide each prospective juror with an opportunity to respond to questions

concerning the four principles to “ensure that each prospective juror both understands and

accepts each of the four principles.” People v. Montgomery, 2018 IL App (2d) 160541,

¶ 25 (citing Belknap, 2014 IL 117094, ¶¶ 44-46; People v. Wilmington, 2013 IL 112938,

¶ 32; People v. Thompson, 238 Ill. 2d 598, 607 (2010)).

¶ 46 Here, the circuit court did not question the second panel of prospective jurors on

the second principle—whether they understood and accepted that the State was required

to prove defendant guilty beyond a reasonable doubt. Because Supreme Court Rule

431(b) requires a court to question jurors on each of the enumerated principles, the court

did not comply with the rule. Based on the State’s concession, and our review of the 20 record, we hold that the court erred by failing to comply with Supreme Court Rule

431(b).

¶ 47 We next must determine whether the error rises to the level of plain error.

Defendant argues that the issue is reviewable under the first prong of the plain-error

doctrine. When a defendant claims first-prong plain error, “a reviewing court must decide

whether the defendant has shown that the evidence was so closely balanced the error

alone severely threatened to tip the scales of justice.” Sebby, 2017 IL 119445, ¶ 51. In

considering whether the trial evidence was closely balanced, “a reviewing court must

evaluate the totality of the evidence and conduct a qualitative, commonsense assessment

of it within the context of the case.” Id. ¶ 53. “A reviewing court’s inquiry involves an

assessment of the evidence on the elements of the charged offense or offenses, along with

any evidence regarding the witnesses’ credibility.” Id.

¶ 48 Here, defendant was charged under section 60(a) of the Methamphetamine Control

and Community Protection Act, which provides that “[i]t is unlawful knowingly to

possess methamphetamine or a substance containing methamphetamine.” 720 ILCS

646/60(a) (West 2014). Accordingly, to sustain a conviction on the charge, the State was

required to prove that defendant knowingly possessed methamphetamine. “The element

of knowledge is rarely susceptible to direct proof and is usually established by

circumstantial evidence.” People v. Bui, 381 Ill. App. 3d 397, 419 (2008). Knowledge

may be established by evidence of acts, statements, or conduct of the defendant, as well

as the surrounding circumstances, which supports the inference that he knew of the

existence and location of the illegal substance. Id. Possession may be actual or 21 constructive. People v. Givens, 237 Ill. 2d 311, 335 (2010). Actual possession is shown

when a defendant demonstrates “some form of dominion over the unlawful substance,

such as trying to conceal it or throw it away.” People v. Morrison, 178 Ill. App. 3d 76, 90

(1988). “Constructive possession exists where an intent and capability to maintain control

and dominion over the substance exists.” People v. Neylon, 327 Ill. App. 3d 300, 306

(2002). “The evidence establishing constructive possession is often wholly

circumstantial.” People v. Newman, 211 Ill. App. 3d 1087, 1093 (1991).

¶ 49 According to defendant, the evidence “concerning the disputed issue of who

possessed the pipe containing the methamphetamine residue” was closely balanced

because both parties presented evidence in support of their respective theories and the

case rested on a “contest of credibility.” Defendant’s theory was that the pipe found in his

red bag never belonged to him and that Cox had, unbeknownst to him, 2 placed the pipe in

his red bag at some point after the bag was transported to the residence. According to

defendant, his surprised reaction to the discovery of the glass pipe, coupled with Cox’s

testimony, demonstrated he was unaware that the pipe was in his bag.

¶ 50 At trial, the State presented the testimony of four officers involved in the search

and a forensic chemist, along with numerous exhibits. The evidence showed, and

defendant does not dispute, that officers found a glass pipe containing a residue, which

later tested positive for methamphetamine, inside of defendant’s red bag while searching

the residence. Defendant admitted ownership of the red bag before it was searched, and

2 Defendant asserts in his reply brief that the pipe was placed in his bag “against his will.” We find no support for that assertion in the record. Instead, during the instruction conference, defense counsel only asserted that “[defendant] may not have been aware of the presence of what was in his bag.” 22 the pipe was discovered by Feutz under various items of clothing. A digital scale was also

discovered inside of defendant’s green bag. Feutz showed the items to Earnst, who then

searched defendant’s person and questioned defendant. Earnst testified that defendant

admitted ownership of the digital scale and that, although defendant initially denied

ownership of the pipe found in his red bag, he eventually admitted ownership of the pipe

as well. Specifically, defendant admitted that the pipe belonged to him after

acknowledging that, if he were drug tested, his urine would test positive for

methamphetamine.

¶ 51 In arguing that the evidence is closely balanced, defendant does not dispute his

own admission. Defendant, instead, focuses on the evidence he presented, which he

claims supported his theory of the case and undermined Earnst’s testimony regarding his

admission. Specifically, the officers’ testimonies showing that he readily admitted

ownership of the red bag and that he appeared to be surprised by the discovery of the pipe

in his bag. Defendant also focuses on the evidence he presented at trial, specifically the

testimonies of Riker and Cox. While Riker testified that she did not observe the pipe and

plastic baggie inside of the red bag when she assisted defendant in packing both bags that

morning, she admitted that there were various items in the bottom of the red bag before

they began packing and it was possible the pipe and plastic baggie could have been

hidden under those items. Riker testified that she placed both bags on the living room

floor when she returned home some time before noon, and that several individuals,

including Cox, had been in and out of her residence throughout the day. Riker claimed

that she did not touch the bags again and that, although it was possible someone else 23 could have touched the bags throughout the day, she did not believe the bags had been

disturbed. We note that Riker’s testimony, assuming it was credible, regarding her belief

that the bags had not been disturbed, could be viewed as unfavorable to defendant, given

that his theory of the case was that Cox opened the bag and put the pipe inside earlier that

day. Moreover, her testimony, at most, demonstrates that the bags were on the living

room floor earlier that day, and that several individuals, including Cox, had been in and

out of the residence throughout the day.

¶ 52 Defendant relies heavily on Cox’s testimony that the pipe belonged to her, and that

she had placed the pipe and baggie inside of the red bag earlier that day. Cox explained

that she was using methamphetamine in the living room and, at approximately 11 a.m.,

someone startled her by knocking on the door. She immediately looked for a place to

conceal the pipe and baggie because she did not want anyone to know she was “using.”

She claimed the red bag was the only place she could find to hide the pipe and baggie, so

she threw the items into the bag and forgot about them.

¶ 53 In our view, however, Cox’s version of events was implausible and lacked

believability for several reasons. First, as the State points out, Cox also testified that she

placed the glass vial in the red bag, which is directly contradicted by Spangler’s credible

testimony that the glass vial was used in her analysis of the pipe months later. Second,

Cox’s testimony that she hurriedly threw the pipe inside of the red bag appears to conflict

with Feutz’s testimony that he found the pipe under various items of clothing near the

bottom of the bag. Third, Cox’s testimony that she forgot about placing the pipe in the

red bag is implausible, given that she was detained in the living room when the pipe was 24 found in defendant’s bag. Moreover, while the trial evidence fails to clarify exactly when

Cox remembered placing the items in the red bag, we find it noteworthy that she failed to

claim ownership of the pipe and baggie in her August 12, 2016, written statement, in

which she claimed ownership of other specific items found during the search. We also

note that Riker signed the written statement as a witness; however, Cox testified that no

one was present when she prepared the written statement. For these reasons, we find the

trial evidence clearly demonstrated that Cox lacked credibility and, thus, her testimony

pales in comparison to defendant’s admission and the State’s other evidence in the case.

¶ 54 Thus, based on the totality of the evidence and our qualitative, commonsense

assessment of the evidence presented at trial, we find no basis to conclude that the

evidence was closely balanced. Although defendant presented some evidence in support

of his theory at trial, we find defendant’s version of events improbable and unsupported

by credible evidence, especially when viewed in light of his admission. We, therefore,

find the evidence was not so closely balanced as to warrant plain-error review and honor

his procedural forfeiture of the issue relating to the circuit court’s failure to comply with

Supreme Court Rule 431(b).

¶ 55 B. Propensity Evidence

¶ 56 Defendant next contends that the circuit court committed reversible error by

admitting other-crimes evidence at his trial. Defendant specifically argues that the circuit

court erred by allowing Earnst to testify that he found the purple pipe, along with the

suspected cannabis, in defendant’s front pocket and that defendant admitted his urine

would test positive for methamphetamine. Defendant also argues that the court erred by 25 admitting the evidence receipt that listed the purple pipe and suspected cannabis as

attributable to defendant (State’s Exhibit No. 3). Defendant acknowledges that he also

forfeited review of these claims either by failing to object to the introduction of the

evidence at trial or by failing to include the issues in his posttrial motion, but he again

argues that this court may review the unpreserved claims under either prong of the plain-

error doctrine.

¶ 57 Because we have determined that the evidence in this case was not closely

balanced, we will only consider whether the unpreserved claims are reviewable under the

second prong of the plain-error doctrine. As noted, the second prong permits review of

unpreserved claims when “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.” Piatkowski, 225 Ill. 2d at

565 (citing Herron, 215 Ill. 2d at 186-87). “Although the erroneous admission of other-

crimes evidence ordinarily calls for reversal, the evidence must have been a material

factor in the defendant’s conviction such that, without the evidence, the verdict likely

would have been different.” People v. Hall, 194 Ill. 2d 305, 339 (2000). In other words,

reversal is not warranted if it is unlikely that the error influenced the jury. People v.

Cortes, 181 Ill. 2d 249, 285 (1998).

¶ 58 We begin by considering whether a clear or obvious error occurred. Sebby, 2017

IL 119445, ¶ 49. We first address defendant’s argument that the circuit court erred by

allowing Earnst’s testimony regarding the purple pipe and the suspected cannabis and

defendant’s admission that his urine would test positive for methamphetamine. Evidence 26 of other crimes and offenses is generally inadmissible to show “the defendant’s

disposition or propensity to commit crime.” People v. Illgen, 145 Ill. 2d 353, 364 (1991).

Illinois Rule of Evidence 404(b) addresses evidence pertaining to “Other Crimes, Wrongs

or Acts” and provides in relevant part:

“Evidence of other crimes, wrongs, or acts is not admissible to prove the character

of a person in order to show action in conformity therewith ***. Such evidence

may also be admissible for other purposes, such as proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Ill. R. Evid. 404(b) (eff. Jan. 1, 2011).

However, even if offered for a permissible purpose, other-crimes evidence should not be

admitted if its prejudicial impact outweighs its probative value. People v. Chapman, 2012

IL 111896, ¶ 19.

¶ 59 Although the State offers no grounds justifying the admission of the challenged

evidence, we cannot say that the admission of Earnst’s testimony amounted to clear error.

Courts have found that evidence of other crimes and offenses is admissible when such

evidence is part of a continuing narrative of the events giving rise to the offense, the

evidence is intertwined with the charged offense, or the evidence explains an aspect of

the charge that would otherwise be implausible or inexplicable. People v. Slater, 393 Ill.

App. 3d 977, 992-93 (2009). In addition, “evidence of the course of the investigation into

a crime and the events leading up to an arrest are relevant when necessary and important

to a full explanation of the State’s case.” People v. Gonzalez, 379 Ill. App. 3d 941, 950

(2008); see also People v. Byrd, 43 Ill. App. 3d 735, 742 (1976) (“Informing the triers of 27 fact of consequential steps in the investigation of a crime is normal procedure and is

important to the full presentation of the State’s case.”).

¶ 60 Here, Earnst’s testimony regarding the purple pipe and suspected cannabis found

in defendant’s front pocket explained the course of his investigation into the charged

offense and the events leading up to defendant’s arrest. The evidence demonstrated that

Earnst executed a search warrant at a residence and, although defendant did not live at the

residence, officers found several drug-related items, including a methamphetamine pipe,

plastic baggie and digital scale, inside of defendant’s red and green bags during the

search. Earnst testified that he first examined the pipe, plastic baggie and digital scale

found in defendant’s bags but, before questioning defendant about these items, Earnst

searched defendant’s person and found a purple pipe and suspected cannabis in

defendant’s pocket. Earnst testified that he then questioned defendant about the items

found in his pocket and, after defendant advised that both items belonged to him, Earnst

questioned defendant about the items found in his bags during the search. Earnst testified

that defendant initially denied ownership of the pipe and plastic baggie found in his red

bag but admitted ownership of the digital scale found in his green bag. Earnst continued

questioning defendant, who was crying, sweating and shaking, about the pipe and baggie

found in his red bag and, after defendant admitted his urine would test positive for

methamphetamine, defendant “advised the items were his.” Because Earnst’s testimony

explained the circumstances leading to defendant’s subsequent admission that the glass

pipe did in fact belong to him, and, in the context of this case, arguably shows his

knowledge of the pipe, permissible under Illinois Rule of Evidence 404(b) (eff. Jan. 1, 28 2011), we do not find it improper. Earnst’s testimony also advised the jury of the

consequential steps in his investigation. Thus, under these circumstances, we cannot say

that that admission of Earnst’s testimony amounted to a clear or obvious error.

¶ 61 In addition, we note that, not only did defense counsel fail to object to Earnst’s

testimony regarding the purple pipe and suspected cannabis, counsel revisited this

specific testimony on cross-examination. Specifically, defense counsel attempted to

discredit Earnst’s testimony regarding defendant’s admission that the pipe belonged to

him by highlighting Earnst’s testimony that defendant initially admitted ownership of the

suspected cannabis and digital scale but denied ownership of the pipe found in his red

bag. For this additional reason, we find no clear and obvious error occurred where

defense counsel, in effect, acquiesced to the admission of Earnst’s testimony regarding

defendant’s voluntary admissions that various drug-related items belonged to him. See

People v. Bush, 214 Ill. 2d 318, 332-33 (2005) (“when a defendant procures, invites, or

acquiesces in the admission of evidence, even though the evidence is improper, [he]

cannot contest the admission on appeal.”). This is especially true where defense counsel

did not seek to bar this testimony before trial, defense counsel did not object at trial, and

then defense counsel clearly relied upon this testimony as part of the defense’s trial

theory.

¶ 62 We next consider defendant’s claim that State’s Exhibit No. 3, the evidence

inventory receipt listing the purple pipe and suspect cannabis as attributable to defendant,

was improperly admitted at trial. At trial, Earnst identified the evidence inventory receipt

he prepared regarding the items he discovered during the search that were attributable to 29 defendant as State’s Exhibit No. 3. In addition to the glass pipe and plastic baggie found

in defendant’s red bag, the evidence receipt listed the purple pipe and suspected cannabis

found in defendant’s pocket as attributable to defendant. Defendant objected to the

admission of the inventory receipt as impermissible hearsay, but he now contends that

this receipt constituted improperly admitted other-crimes evidence. Thus, defendant has

waived the right to object on the grounds he now asserts on appeal. See People v.

Berberena, 265 Ill. App. 3d 1033, 1050 (1994) (“Because objections at trial on specific

grounds waive all other grounds of objections, defendants have waived the right to object

on the grounds they now assert on appeal.”).

¶ 63 Even assuming, arguendo, that the admission of the evidence inventory receipt

was error, this evidence was not a material factor in his conviction “such that, without the

evidence, the verdict likely would have been different.” Hall, 194 Ill. 2d at 339. This is

especially true where the State’s evidence showed that defendant admitted that both the

red bag and the glass pipe found therein belonged to him. Thus, even if improperly

admitted, we cannot say that the evidence inventory receipt was a material factor in

defendant’s conviction. For the foregoing reasons, we conclude that defendant has failed

to show that the circuit court’s admission of other-crimes evidence amounted to plain

error under the second prong.

¶ 64 Defendant alternatively argues that defense counsel was ineffective in failing to

object to the introduction of the other-crimes evidence at trial. A defendant has a

constitutional right to the effective assistance of counsel. Strickland v. Washington, 466

U.S. 668, 685-86 (1984); People v. Albanese, 104 Ill. 2d 504, 525-26 (1984); see also 30 U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Counsel provides ineffective

assistance where (1) counsel’s decisions were objectively unreasonable and (2) a

reasonable probability exists that but for counsel’s deficient performance, the outcome of

the trial would have been different. Strickland, 466 U.S. at 687-89; Albanese, 104 Ill. 2d

at 525-26. Given the analysis outlined above, we similarly conclude that there is no

reasonable probability that the outcome of defendant’s trial would have been different

had the other-crimes evidence not been admitted. Thus, we reject defendant’s claim that

defense counsel was ineffective for failing to object. See Hall, 194 Ill. 2d at 340.

¶ 65 For similar reasons, we reject defendant’s last argument that the cumulative effect

of the other-crimes evidence denied him a fair trial. As discussed above, the circuit court

did not err in admitting Earnst’s testimony. Defendant waived review of his claim that the

circuit court erred in admitting the evidence inventory receipt on the grounds that it

constituted other-crimes evidence. Moreover, any arguable error that occurred in

admitting any of the challenged evidence was harmless in light of the strong evidence

against him in this case.

¶ 66 C. Jury Instruction

¶ 67 Lastly, defendant contends that the circuit court committed reversible error by

refusing his tendered jury instruction regarding possession as a voluntary act. We initially

note that, unlike his previous claims, defendant preserved this claim for review by

tendering the instruction at trial and including the issue in his posttrial motion. See

Herron, 215 Ill. 2d at 175 (“Generally, a defendant forfeits review of any putative jury

31 instruction error if the defendant does not object to the instruction or offer an alternative

instruction at trial and does not raise the instruction issue in a posttrial motion.”).

¶ 68 Defendant correctly notes that where, as here, the issue is preserved, “ ‘a

defendant’s claim of improper jury instructions is reviewed under a harmless-error

analysis.’ ” People v. Gonzalez, 326 Ill. App. 3d 629, 636 (2001) (quoting People v.

Amaya, 321 Ill. App. 3d 923, 929 (2001)). “[T]he test for harmless error in the context of

an instructional error is whether the result at trial would have been different had the jury

been properly instructed.” People v. Dennis, 181 Ill. 2d 87, 95 (1998) (citing People v.

Johnson, 146 Ill. 2d 109, 137 (1991)). Unlike a plain-error analysis, in a harmless-error

analysis, the State bears the burden of persuasion and, thus, “must prove beyond a

reasonable doubt that the jury verdict would have been the same absent the error.” People

v. Thurow, 203 Ill. 2d 352, 363 (2003).

¶ 69 However, similar to a plain-error analysis, the first analytical step in a harmless-

error analysis is to determine whether any error occurred. Dennis, 181 Ill. 2d at 95.

Defendant, citing People v. Larry, 218 Ill. App. 3d 658 (1991), claims the circuit court

erred by refusing to tender IPI Criminal 4th No. 4.15, which would have instructed the

jury that “[p]ossession is a voluntary act if the person knowingly procured or received the

thing possessed, or was aware of his control of the thing for a sufficient time to have been

able to terminate his possession.” IPI Criminal 4th No. 4.15. According to defendant, the

jury should have received this instruction because it supported his theory of the case—

that he “was not in possession of the glass pipe containing the methamphetamine residue,

because he was unaware that the glass pipe was in his bag.” Defendant further maintains 32 that, without his proposed instruction, the jury may have improperly convicted him based

on the mere presence of the pipe in his bag.

¶ 70 In contrast, the State argues that the circuit court properly denied the instruction

regarding voluntary possession. The State, citing Bui, 381 Ill. App. 3d 397, asserts that

the instruction would have confused the issue before the jury, which was whether

defendant “knowingly possessed” the methamphetamine. The State alternatively argues

that any error in denying the instruction was harmless.

¶ 71 Jury “[i]nstructions convey the legal rules applicable to the evidence presented at

trial and thus guide the jury’s deliberations toward a proper verdict.” People v. Mohr, 228

Ill. 2d 53, 65 (2008) (citing People v. Hudson, 222 Ill. 2d 392, 399 (2006)); see also

Herron, 215 Ill. 2d at 187 (“The function of jury instructions is to convey to the jury the

law that applies to the evidence presented.”). “There must be some evidence in the record

to justify an instruction, and it is within the [circuit] court’s discretion to determine which

issues are raised by the evidence and whether an instruction should be given.” Mohr, 228

Ill. 2d at 65. “Instructions which are not supported by either the evidence or the law

should not be given.” Id. A reviewing court is tasked with determining “whether the

instructions, considered together, fully and fairly announce the law applicable to the

theories of the State and the defense.” Id.

¶ 72 Generally, the circuit court’s refusal to give a tendered jury instruction is reviewed

for an abuse of discretion. People v. Monroe, 366 Ill. App. 3d 1080, 1088 (2006). An

abuse of discretion occurs where the ruling is “arbitrary, fanciful or unreasonable, or

where no reasonable person would take the view adopted by the trial court.” People v. 33 Laabs, 2011 IL App (3d) 090913, ¶ 18. If, however, the issue on appeal requires a

determination of whether the given instructions adequately conveyed the applicable law

to the jury, our review is de novo. People v. Olaska, 2017 IL App (2d) 150567, ¶ 119.

¶ 73 In Larry, the defendant appealed his conviction for unlawful use of a weapon by a

felon, arguing, inter alia, that the circuit court erred by refusing to instruct the jury that

possession is a voluntary act. 218 Ill. App. 3d at 660. The trial evidence showed that the

defendant was stopped for a traffic violation while he was driving a friend’s vehicle, and,

during the stop, officers noticed the handle of a gun protruding from underneath the mat

on the driver’s side of the vehicle. Id. at 660. The defendant claimed that he did not know

the gun was in the vehicle. Id. at 661. The defense tendered IPI Criminal 4th No. 4.15,

but the circuit court refused to tender the instruction “on the ground that it would be

‘confusing’ to the jury.” Id. at 665. On appeal, the First District concluded “that [the

defendant] should not be denied the right to an instruction on voluntary possession

merely because he denied knowledge of the gun altogether.” Id. The First District held

that it was reversible error for the circuit court to refuse the instruction on voluntary

possession where, given the position of the gun under the mat, “the jury might

legitimately have inferred that the defendant had been aware of the gun, but not for a

sufficient time to enable him to terminate his possession.” Id. at 665-66.

¶ 74 In Bui, the defendant appealed his convictions for possession of a controlled

substance with intent to deliver, arguing, inter alia, that the circuit court abused its

discretion by refusing to instruct the jury regarding possession as a voluntary act. 381 Ill.

App. 3d at 400. The trial evidence showed that, during an inspection at a United Parcel 34 Service (UPS) location, officers searched a suspicious package and found a large dietary

supplement container with narcotics hidden inside. Id. at 400-01. Officers then arranged a

controlled delivery of the package, which was taken to a nail salon and later picked up by

the defendant. Id. at 401-02. After the defendant returned home with the package, officers

entered the residence with a search warrant and found the open package, along with the

dietary supplement container holding the narcotics, on the floor of the defendant’s

bedroom. Id. at 402-03. The defense tendered IPI Criminal 4th No. 4.15, but the circuit

court denied the instruction because the disputed issue at trial was whether the defendant

had knowledge as to the contents of the package. Id. at 424.

¶ 75 On appeal, the First District determined that the disputed issue at trial was

knowledge, not voluntary possession, where the defendant argued that he was not aware

of the narcotics inside the package. Id. at 425. The First District concluded that the circuit

court properly instructed the jury that the State was required to prove that the defendant

“knowingly possessed” the narcotics with the intent to deliver, and that the jury could not

have made this finding if it believed that the defendant was unaware of the narcotics

inside of the package. Id. at 425-26. The First District, citing “the lack of evidence

indicating that [the] defendant’s possession was involuntary and the fact that the disputed

issue at trial was knowledge,” concluded that “the meaning of the requested instruction

would have been unclear and its submission would have only served to confuse the jury.”

Id. at 426 (citing IPI Criminal 4th No. 4.15, Committee Comments, at 130 (noting that

the instruction “should be given only if voluntariness is an issue”); People v. Redmond,

73 Ill. App. 3d 160 (1979)). Thus, the First District held that the circuit court properly 35 refused the instruction, while also noting that any error in refusing to instruct the jury was

harmless where the evidence of the defendant’s guilt was overwhelming. Id.

¶ 76 Here, as in Bui, the question before the jury was whether defendant knowingly

possessed the methamphetamine pipe, not whether his possession was voluntary.

Defendant acknowledges that, in order to sustain a conviction on the charge of

methamphetamine possession, the State was required to prove that he knowingly

possessed methamphetamine or substance containing methamphetamine. 720 ILCS

646/60(a) (West 2014). Similar to Bui, where the defendant focused on the element of

knowledge at trial by arguing that he was not aware of the narcotics, defendant, here, has

consistently maintained, both at trial and in his brief to this court on appeal, that he “was

not in possession of the glass pipe containing the methamphetamine residue, because he

was unaware that the glass pipe was in his bag.” In support of this theory, the defense

presented Cox’s testimony that, unbeknownst to defendant, she placed the pipe inside of

his bag earlier in the day. The State never argued to the jury that defendant should be

subject to criminal liability based on the mere presence of the methamphetamine pipe in

his bag, and defendant’s assertion that the jury may have found him guilty on this basis is

not supported by the record. Thus, in our view, the record clearly shows that the disputed

issue at trial was whether defendant knowingly possessed the methamphetamine.

¶ 77 The record also shows that the jury instructions given by the circuit court,

considered as a whole, fully and accurately conveyed the applicable law to the jury. In

addition to instructing the jury on the burden of proof, presumption of innocence and the

definitions of actual and constructive possession, the court instructed the jury that the 36 State was required to prove that defendant “knowingly possessed” methamphetamine.

Defendant does not challenge the propriety of this instruction but maintains that the

instruction regarding voluntary possession was necessary to explain to the jury the

possibility that his possession “was involuntary, and consequently not knowing.”

However, if the jury believed defendant was unaware that the pipe was in his bag, it

could not have found that he “knowingly possessed” methamphetamine. See Bui, 381 Ill.

App. 3d at 425-26; see also Redmond, 73 Ill. App. 3d 160 (same instruction properly

refused where the jury could not have found the defendant “knowingly possessed” the

contraband if it had believed the defendant’s testimony that he had not known about the

drugs and there was no other evidence from which the jury could have found that the

defendant became aware of the drugs but did not have sufficient time to terminate his

possession). Under these circumstances, the instruction regarding voluntary possession

was unnecessary and likely would have confused the jury.

¶ 78 Moreover, we find the present case distinguishable from Larry, where the circuit

court found that a jury could have reasonably determined from the evidence that the

defendant had been aware of the partially concealed gun. Here, unlike Larry, there was

no evidence presented at defendant’s trial from which the jury could have concluded that

defendant became aware that the pipe was in his bag but, by then, lacked sufficient time

to remove the pipe. Instead, the evidence showed that when officers searched the

residence, the methamphetamine pipe was inside of defendant’s bag, concealed from

view. Defendant fails to identify any other evidence that would establish that he suddenly

became aware of the pipe but lacked sufficient time to dispossess himself of the pipe. 37 Thus, the trial evidence did not provide the necessary foundation for the instruction

tendered by defendant.

¶ 79 Because the disputed issue was knowledge and the evidence did not raise an issue

regarding voluntary possession, the meaning of defendant’s proffered instruction would

have been unclear and the submission of the instruction would have confused the jury.

See Bui, 381 Ill. App. 3d at 426; see also Redmond, 73 Ill. App. 3d at 177. For these

reasons, we cannot say that the circuit court abused its discretion by refusing to tender IPI

Criminal 4th No. 4.15.

¶ 80 Finally, even assuming, arguendo, that there was error in refusing defendant’s

tendered instruction, we agree with the State that any error was harmless. The evidence

showed that, although defendant did not live at the residence, he was present during the

search and the pipe—that defendant admitted belonged to him—was found inside of his

bag. This evidence overwhelmingly proved defendant guilty beyond a reasonable doubt.

In addition, we reiterate that the instructions given at defendant’s trial would not have

allowed the jury to find that defendant knowingly possessed methamphetamine if it

believed he was unaware that the pipe was in his bag. Therefore, we fail to see how the

result of defendant’s trial would have been different had the jury been instructed on

possession as a voluntary act.

¶ 81 III. Conclusion

¶ 82 For the foregoing reasons, we hereby affirm the judgment of the circuit court of

Lawrence County.

¶ 83 Affirmed. 38