People v. Belknap

No. 3–08–0692
______________________________________________________________________________
Filed November 18, 2009
IN THE APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2009

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) for the 9th Judicial Circuit,
) McDonough County, Illinois
)
Plaintiff-Appellee, )
) No. 07–CF–251
v. )
)
DANIEL R. BELKNAP, ) Honorable
) William D. Henderson,
Defendant-Appellant. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE CARTER delivered the opinion of the court:
______________________________________________________________________________

The defendant, Daniel R. Belknap, was convicted of first degree murder and endangering

the life of a child in connection with the death of five-year old Silven Yocum in September 2006.

720 ILCS 5/9–1(a)(1), 12–21.6(a) (West 2006). On appeal, the defendant raises challenges to the

sufficiency of the evidence, the trial court’s failure to strictly comply with Supreme Court Rule

431(b) (Official Report Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007), the

admission of certain testimony, and the court’s ex parte communications with the jury. We

reverse the defendant’s convictions and remand for a new trial.

I. FACTS

The defendant was charged with first degree murder and endangering the life of a child.

Prior to trial, the defendant filed several motions in limine to exclude certain evidence. These
motions included a motion to exclude the testimony or evidence of any statement of jailhouse

informants Jeff Ahlers and Joseph Burgess and a motion to exclude certain testimony by

paramedic Heather Connor as to statements made to her by the victim’s mother, Erin Yocum.

The defendant’s trial began on May 19, 2008, with jury selection. On that day, the court

addressed the venire as a group. The court stated:

“Every defendant is presumed innocent until proven guilty by proof

beyond a reasonable doubt. It is the burden of the State to prove their case by

proof beyond a reasonable doubt.

The defendant is not required to testify or to offer any evidence on his

behalf. If a defendant does not testify on his own behalf, you may not consider the

fact that he didn’t testify in deciding the question of his guilt or innocence.”

The court then called groups of four potential jurors into the courtroom for questioning by

the court and the parties. The court asked each small group of potential jurors whether they had

read or heard any media reports about the case. In addition, the court asked whether they could

set aside what they had learned from those accounts and decide the case based solely on the

evidence presented in court. The court also asked whether the potential jurors had any bias or

prejudice against a person simply because that person had been charged with a crime. Further,

the court asked each small group of potential jurors whether they would apply the law as the

court instructed it to be without regard to their own feelings.

Jury selection continued on May 20, 2008. Again, the court addressed the entire venire,

stating:

“In a criminal trial in the United States in Illinois, the defendant is

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 presumed to be innocent. That presumption of innocence stays with him

throughout the trial until you’ve heard the whole thing and actually make your

decision and you decide whether he’s innocent or not.

The standard of proof in a criminal trial is proof beyond a reasonable

doubt, and that isn’t defined any more than that. Proof beyond a reasonable doubt

is the standard I’m sure the attorneys will talk to you about in their arguments.

In a criminal case, a defendant is not required to present any evidence.

You merely stand mute and see what the State can prove. A defendant is not

required to testify. He may. He doesn’t have to. That’s up to him. And if he

doesn’t testify under the constitutional system of this country, then that decision

cannot be used as part of your decision-making process. If he testifies, you can

consider what he says. If he doesn’t testify, you don’t go there.”

The court also questioned the small groups of potential jurors, asking the same questions it had

asked the previous day.

Following opening statements, the trial proceeded with the testimony of Erin Yocum.

Erin testified that she was the mother of the victim, Silven Yocum. Silven was five years old at

the time of her death in September 2006. In September 2006, Erin was dating the defendant.

Erin and Silven did not live with the defendant, but they frequently stayed at the defendant’s

house. Silven had her own room at the defendant’s house.

During the time period of Monday, September 4, 2006, through the morning of Friday,

September 8, 2006, Erin did not notice anything unusual with Silven. Silven did not appear to be

ill during this time. On Friday, September 8, Erin put Silven to bed at the defendant’s home

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between 9:00 and 10:00 p.m. At approximately 11 p.m., Erin left the house to buy some

magazines. She was gone for an hour to an hour-and-a-half. When she arrived back at the

defendant’s home, the defendant was in the garage with a man she had never before met. Erin

did not see anyone smoking methamphetamine, and she denied smoking methamphetamine at

that time. Erin checked on Silven, who was sleeping. Erin went to bed at approximately 1:30

a.m. and awoke around 5 a.m. The defendant had not slept in the house the previous night and

was still in the garage. Silven awoke shortly thereafter. There did not appear to be anything

wrong with Silven at that time.

Later that morning of Saturday, September 9, 2006, Erin and Silven painted a doghouse.

Silven, however, was not interested in painting, which Erin thought was unusual. Silven only

wanted to sit on Erin’s lap. At approximately 9 a.m., the defendant told Silven to go into the

house to help him make breakfast. Silven did not want to go and cried. The defendant picked up

Silven and carried her into the house. Erin followed 10 to 15 minutes later. Silven ate her

breakfast, but did not want to do anything else. Erin thought that Silven was getting sick, as

Silven was sniffling and coughing. Erin, herself, had a bad cold at the time.

After breakfast, Silven and the defendant went for a ride on his four-wheeler. Erin

testified that they were gone for approximately 5 to 10 minutes, and that Silven appeared fine

when they returned. Later that afternoon, Erin telephoned her brother and asked if his son, Brett,

could come to the defendant’s house and play with Silven. Erin requested that Brett come and

play with Silven because Silven was unusually clingy that day. Erin then drove to her brother’s

home to pick up Brett, which took approximately 40 minutes. Silven did not go with her. After

Brett arrived, he and Silven went to jump on the trampoline. Silven did not want to jump,

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however.

Erin testified that Brett’s father, Erik, was also present at the defendant’s house on

Saturday. Erik arrived at approximately 5:30 p.m. to take Brett to a birthday party. Silven went

with Erik when he drove Brett to the party. Erik and Silven were gone for approximately a half-

hour. When they returned, Silven did not want to eat the pizza that Erik had bought her. Silven

sat on Erik’s lap for about an hour and appeared to be sicker than she had been earlier that day.

Erin testified that Silven did not have any energy throughout the day, that she did not want to eat

and only wanted to cling to Erin.

At 7:30 p.m., Erik left the defendant’s house to pick up Brett from the birthday party.

Erin testified that Erik telephoned her soon after and told her that a wheel had come off his truck

on his way to get Brett. Erin got into her car and left the house to find Erik. Erin testified that it

took approximately 10 minutes to find Erik. They then returned to the defendant’s house and the

defendant went with Erik to go get Erik’s truck. The defendant and Erik returned shortly, and

Erik took Erin’s car. The defendant left to pick up some food and medicine for Erin and Silven,

returning at approximately 10 p.m.

Erin’s testimony regarding when Silven went to bed that night is somewhat muddled.

First, she testified that after she returned from picking up Erik she “went in the house with

Silven.” The defendant carried Silven into the house and put her to bed. Erin testified Silven

appeared tired and sick at that time. A little later in her testimony, she testified that Silven was

already in bed when Erin left the house to get Erik, and that Silven went to bed at 8:30 or 9 that

evening. On cross-examination, she testified that the defendant took Silven into the house when

Erin left to get Erik and that Silven was in bed when Erin returned to the house.

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 At 6:30 a.m. on Sunday, Erin awoke to use the restroom. Erin passed by Silven’s room

and heard her snoring. Erin thought that Silven was congested and sounded as if she was

sleeping heavily. Erin did not go inside Silven’s room and could not see Silven clearly because

Erin was not wearing her glasses. Erin went back to bed and awoke again at 10 or 10:30 a.m.

Silven was still sleeping and snoring. Erin was not feeling well, so she went back to bed again.

Erin woke for the third time at noon when Erik called and told her he was coming to the house to

get his truck. While Erin was on the telephone with Erik, the defendant yelled from Silven’s

room. Erin testified that she went to Silven’s room and saw Silven having a seizure. Erin then

called 911.

Initially, Silven was taken to McDonough District Hospital. Erin testified that the

defendant accompanied her to the hospital, but that he left at some point to get clothing and

insulin for Erin, who is diabetic. Erin testified that she made arrangements to meet the defendant

at another location so that they could travel together to St. Francis hospital in Peoria, where

Silven was transferred. Erin’s parents drove her to the meeting place and Erin got into the

defendant’s vehicle. While they were driving, Erin told the defendant what Silven’s doctor had

told her about Silven’s injuries. Erin testified that the doctor had told her that Silven had

suffered blunt force trauma, that she was broken from head to toe with a broken sternum and

punctured bowels. The doctor also told her that Silven had been tied at the ankles and

sodomized. Later, it was determined that some of these statements by the doctor were not true.

The defendant told Erin that he felt sick, and she told him to stop the car. Erin then left the

defendant’s vehicle and got into her parents’ car to continue traveling to Peoria. The defendant

did not go to the hospital in Peoria.

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 Erin testified that she had been interviewed by police officers several times since

September 10, 2006. On September 15, 2006, Erin was interviewed by Detective Holt, who told

her that he believed that either she, the defendant or Erik had hurt Silven. In January 2007,

Sheriff Van Brooker requested a meeting with Erin. Erin informed the defendant of the request

when the defendant telephoned her from the Tazewell County jail. Erin testified that the

defendant told her not to meet with Van Brooker. Erin further testified that her phone

conversation with the defendant had been recorded. That recording was played for the jury.

On cross-examination, Erin testified regarding another conversation with the defendant in

January 2007. In that conversation, Erin and the defendant discussed their perception that the

police were trying to pressure them into admitting that one of them had hurt Silven. The

defendant told Erin that he did not know what had happened to Silven.

Erin testified that she did not strike Silven at any time during the time period of

September 8, 2006, through September 10, 2006. Erin further testified that Silven showed her an

injury to her ankle when Silven took a bath on Thursday, September 7, 2006. Silven told her that

she had sustained the injury when she fell off the monkey bars and a boy fell on top of her. Erin

did not notice any other injuries to Silven at the time, other than blisters on Silven’s ankles.

Silven had complained of headaches during the week before her seizure, which Erin attributed to

Silven’s new eyeglasses.

Erin also testified that she had recently completed a federal first-offender drug program in

connection with federal drug charges. Erin was using methamphetamine in September 2006 and

had been using the drug for approximately five years. At the time of trial, a child endangerment

charge was pending against Erin in connection with Silven’s death. A plea offer had been made

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to Erin in exchange for her truthful testimony at the defendant’s trial, but Erin had not accepted

the plea offer. She testified that she did not testify because of the plea offer, but that she was

testifying for Silven.

Brett Yocum Winters testified that he was six years old in September 2006. Brett

testified that he visited Silven’s house a few times in September 2006 and that he remembered

jumping on the trampoline. Silven only jumped for a few seconds and then got off the

trampoline because she did not feel well. Brett testified that Silven did not fall off the

trampoline. Brett also testified that he, Silven and the defendant went for a ride on the four-

wheeler. They rode on the four-wheeler slowly for about five minutes, and no one was hurt.

Brett also testified that Silven complained that her head hurt.

Erik Yocum testified that he was Erin’s brother and Brett’s father. Erik testified that he

was present at the defendant’s home on Saturday, September 9, 2006, to pick up Brett, who was

playing with Silven. Erik went to the defendant’s house to get Brett and take him to a birthday

party. Silven accompanied Erik when he took Brett to the party. Erik purchased some pizza and

candy for Silven, but she did not eat them. Erik stayed at the defendant’s house for a while with

Silven, Erin and the defendant. Erik did not see anyone else at the house on that day.

When Erik left the house to pick up Brett from the party, his front left tire fell off. He

called Erin, who found him and brought him back to the defendant’s house. Erik did not see

Silven at this time. Erik and the defendant retrieved a jack from the garage and then the

defendant drove Erik back to his truck. After replacing the tire on his truck, Erik borrowed

Erin’s car and left to pick up Brett.

Erik testified that he telephoned Erin repeatedly on Sunday morning, but he did not reach

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her until approximately 1 or 1:30 p.m. Erik bought some food for everyone and went to the

defendant’s house to fix his truck. When Erik arrived at the house, the defendant was standing

on the porch waving Erik inside. Erik ran inside to Silven’s bedroom and saw her on the bed.

Erik, Erin and the defendant all attempted to awaken Silven. The emergency medical personnel

arrived soon thereafter, and Erik went outside. Silven died a week later. Erik testified that the

defendant did not attend Silven’s funeral.

Erik also testified that he had used methamphetamine in the past, approximately once or

twice per month. He stopped using methamphetamine right after Silven died. Erik testified that

the effects of methamphetamine varied depending upon the amount of the drug ingested. When

Erik took methamphetamine he could not sleep and sometimes did not sleep for two or three

days.

Erik denied ever talking to Nathan Wallick about Silven’s death. Erik denied telling

Wallick that Silven had spoken to a DARE officer at school about the defendant’s drug use. Erik

also denied telling Wallick that the defendant beat Silven.

Aaron Wilson testified that he was a paramedic at McDonough District Hospital and that

he was dispatched to the defendant’s home at 1:31 p.m. on September 10, 2006. Wilson entered

the house and went to Silven’s bedroom, where Silven was laying on the bed. Erin was also

present in the bedroom and told Wilson that Silven had been fine when she was put to bed at

approximately 9 p.m. the night before. Wilson also saw the defendant in the hall outside Silven’s

bedroom, but did not see him in the room.

Wilson testified that Silven was unresponsive to stimuli, and her eyes were open, fixed to

the right. Silven’s hands were tightened in and her legs were turned out and down, in what

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Wilson testified was a classic sign of a brain injury. Silven was also in slight respiratory distress.

Wilson testified that Silven’s blowing type of respiration was also a classic sign of brain injury.

Upon examining Silven, Wilson observed that she appeared unkempt and dirty. Silven also had

dried blood on her teeth and lip area. Wilson also observed numerous contusions to Silven’s legs

near her ankles. Wilson and the other medical personnel quickly determined that Silven needed

to be taken immediately to the nearest trauma facility. In the emergency room of McDonough

District Hospital, Wilson observed a bright red mark in the middle of Silven’s back.

Sergeant John Carson of the McDonough County sheriff’s office testified that he was

dispatched to McDonough District Hospital on September 10, 2006, to investigate a suspected

child abuse case. When Carson arrived, the emergency room personnel were performing

advanced life support measures on Silven and preparing to transport her to a critical care center.

Carson observed and photographed bruises on Silven’s torso, hip, buttocks. He also observed a

large abrasion and bruise on the middle of her back. The abrasion was approximately seven

centimeters by five centimeters. Carson also observed dried blood on Silven’s teeth, gums and

cheek.

Carson also testified that he did not investigate the defendant’s home on Sunday,

September 10, 2006. Carson does not know whether any other police officer went to the

defendant’s home on September 10. Carson, Detective Holt and Chief Deputy Manser

investigated the defendant’s house on September 13 or 14, 2006, after obtaining consent from the

defendant. Carson photographed the bottom of some shoes found in the house, looking for

patterns consistent with the abrasion on Silven’s back. Carson also collected the bedding from

Silven’s room and a shirt that Silven had worn on Saturday September 9, which were submitted

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to the Illinois state crime laboratory for analysis. The analysis report stated that patterns of

unknown origin were found on the shirt and that a shoe could not be eliminated as the possible

source of the pattern. The report also requested possible shoe patterns be submitted for

comparison. No such samples were sent to the laboratory.

Carson also observed that the windows of the house were either nailed or sealed shut.

Carson did not find any evidence of forced entry to the house. Neither the defendant nor Erin

reported any missing items.

Dr. Khaled Dabash testified that he was Silven’s pediatrician and that he was present in

the emergency room on September 10, 2006, when Silven arrived via ambulance. Silven was

unconscious and still seizing when she arrived. Silven did not have a fever, and there were no

signs of infection. Her body was in contracture, indicating a central nervous system insult. Dr.

Dabash observed bruising and marks on Silven’s body, which he believed were indicative of

abuse, so he ordered a CT scan of her head. Dr. Dabash observed the CT scan as it was being

performed and found complete right parietal hematoma, which means blood was covering the

entire right side of Silven’s brain. Dr. Dabash testified that he had no doubt that this injury was

caused by blunt head trauma. Dr. Dabash also suspected a sternal fracture. Dr. Dabash ordered a

life flight that took Silven to Saint Francis Medical Center in Peoria.

Dr. Dabash opined that Silven’s injuries were recent because her brain had not yet

swelled enough to cause herniation. Rather, herniation was beginning to occur at the hospital,

and Dr. Dabash gave her a drug to reduce the swelling. Dr. Dabash testified that when a child

experiences blunt force head trauma, the brain swells over time until the compression of blood on

the brain causes seizures. Dr. Dabash further opined that Silven had experienced blunt force

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trauma to her head within 24 hours at the least before she arrived at the hospital.

Heather Connor testified that she was a paramedic at McDonough District Hospital in

September 2006. Connor was part of the crew that met the ambulance carrying Silven when it

arrived at the hospital. Connor was with Silven throughout most of Silven’s time at that hospital,

and was present when Dr. Dabash informed Erin and the defendant that Silven’s brain was

bleeding. Erin told the doctor that Silven had not been with anyone other than Erin and the

defendant. Connor also testified that Erin held Silven’s hand and rubbed her hair, and that the

defendant stood with his back to Silven, mostly looking at Erin. Connor also testified that Erin

was very distraught and seemed confused by the information given to her by Dr. Dabash.

Connor also retrieved Erin from a waiting room to take her back to Silven after Silven

had been prepared for the flight to Peoria. Connor testified that Erin was crying and that she

stopped while they were walking. Connor went back to her, and Erin asked, “Did he hurt her?”

Connor replied, “I don’t know.” Connor testified that Erin then said, “I will never trust her with

him again.” After they returned to Silven’s bedside, the defendant came into the room. Connor

testified that he told Erin that he was going to his home to get Erin’s clothes and medicine. Erin

pulled away from him.

Jill Goodpasture testified that in September 2006 she lived with Scott Kepple, in a home

approximately five miles from the defendant. Goodpasture testified that she saw Silven on

Tuesday, September 5, 2006, and Wednesday, September 6, 2006. On both occasions, Silven

appeared fine. Goodpasture also testified that she, Kepple, Erin and the defendant smoked

methamphetamine on both days.

Goodpasture testified that she next saw the defendant on Sunday, September 10, 2006,

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when he came to her home and they smoked methamphetamine. Goodpasture testified that the

defendant told her he did not know what had happened to Silven and did not tell her any details

about Silven’s injuries. The defendant was upset and said, “I don’t understand why they don’t

want me there.” The defendant also asked Goodpasture if she thought they would call the police.

Goodpasture also testified that in September 2006 she, Erin and the defendant smoked

methamphetamine together three or four times a week. Silven would not be in the room where

they smoked the drug, but would be somewhere in the same house. Goodpasture never noticed

the defendant experience mood swings when he smoked methamphetamine. At the time of trial,

Goodpasture no longer used methamphetamine. She testified that she was arrested in 2006 for

conspiracy to distribute methamphetamine and successfully completed a first-offender drug

program in November 2007.

Matthew Hocker testified that he was the defendant’s cousin. The defendant arrived at

Hocker’s home at approximately 8:30 p.m. on September 10, 2006. Hocker asked the defendant

if he knew what had happened to Silven, and the defendant said, “No.” Hocker testified that the

defendant also said, “If I go home, are the police going to come knocking on my door tonight?”

Dr. Julian Lin testified the he was a pediatric neurosurgeon at St. Francis Children’s

Hospital in Peoria, Illinois, on September 10, 2006. Dr. Lin examined Silven sometime after 5

p.m. on that day. Silven was in a coma. Soon after, Dr. Lin performed surgery on Silven to

remove a very large blood clot on the surface of the right hemisphere of her brain. Dr. Lin

successfully removed the clot, but Silven remained in a coma. A CAT scan revealed that her

brain had swelled and efforts to control the swelling were unsuccessful. Over the next week,

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Silven did not improve, eventually had no brain activity and died on September 16, 2006.

Larry Leasman testified that he went to the defendant’s home at approximately 1 a.m. on

Saturday, September 9, 2006. The defendant was in the garage, and Erin arrived at the house

shortly after Leasman. Leasman testified that he and the defendant smoked methamphetamine in

the garage that night and that he had smoked methamphetamine with the defendant

approximately 10 or 12 times in the past. Leasman also testified that he purchased

methamphetamine from the defendant that night. Leasman could not recall whether Erin smoked

methamphetamine that night. On cross-examination, Leasman testified that he thought that Erin

smoked methamphetamine that night, but he was not 100% sure.

Jeff Ahlers testified that at the time of trial he was incarcerated in the Illinois Department

of Corrections and that he had been convicted of several felonies in several different counties. In

addition, Ahlers had three cases in three counties pending at that time, and he had been in prison

four times. Further, Ahlers testified that he had been addicted to cocaine for 25 years.

Ahlers testified that he met the defendant in the Tazewell County jail in September 2007.

Ahlers testified that he and the defendant became friends in jail. The defendant described his use

of methamphetamine and told Ahlers that he would not sleep for days. Ahlers also testified that

the defendant also discussed Silven once. Ahlers testified that the defendant told him that he had

been awake for many days due to methamphetamine use and that the defendant had found out

that Silven had spoken to a DARE officer about the defendant’s drug use. The defendant told

Ahlers that he was infuriated and that he pushed Silven and hit her in the head. Ahlers also

testified that the defendant told him that Erin was present when he hit Silven.

Ahlers was thereafter transported to the McDonough County jail in connection with

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criminal charges then pending in McDonough County. While being transported, Sheriff Van

Brooker asked if Ahlers knew the defendant and if Ahlers knew anything about Silven’s death.

Ahlers acknowledged meeting the defendant, but told Sheriff Van Brooker that he did not know

anything about Silven’s death.

Ahlers testified that he met Nathan Ralph and Nathan Wallick after he arrived at the

McDonough County jail and discussed with them the defendant’s role in Silven’s death. Ahlers

discussed the matter with Ralph and Wallick prior to making a statement to the police in

December 2007, that the defendant had confessed to him that he had hit Silven. Ahlers testified

that he asked Ralph for advice as to whether Ahlers should tell the police about the defendant’s

statements to him. Ahlers testified that he was concerned about talking to police because his life

would be in jeopardy in prison for being a snitch.

Dr. Bryan Mitchell testified that he was a forensic pathologist and that he conducted an

autopsy on Silven on September 18, 2006. Dr. Mitchell observed bruises to the right side of

Silven’s head, abrasions on the back of her head, a bruise on her right shoulder, and bruises and

abrasions on her right foot. Dr. Mitchell testified that these injuries were caused by blunt force

trauma.

Upon internal investigation of Silven’s scalp, Dr. Mitchell observed a bruise inside the

scalp that extended to Silven’s occipital bone. This bruise was located under the abrasions seen

on the outside of Silven’s head. Dr. Mitchell also observed that blood had collected under a

membrane on the right side of Silven’s brain and that the brain was very swollen. Dr. Mitchell

testified that the injuries to Silven’s head and brain were consistent with blunt force trauma.

Based upon his examination, Dr. Mitchell testified that there were five distinct areas of blunt

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force trauma to Silven’s head. Dr. Mitchell further testified that these injuries were not likely to

be caused by falling off a trampoline or falling down once. Brain injuries, such as those seen in

Silven, would not necessarily result in the immediate display of symptoms, such as

unconsciousness. Dr. Mitchell opined that Silven sustained the blunt force trauma 12 to 24 hours

before she began having seizures. Further, Dr. Mitchell opined that Silven died as a result of

complications of closed-head injuries due to blunt force trauma caused by blows delivered

directly to her head, or by blows to the head followed by her striking another object. The blows

could have been delivered by a human hand, or possibly by a foot. Dr. Mitchell also testified that

some of the symptoms of a brain injury are lethargy, loss of appetite, and loss of interest in

activities.

Joseph Burgess testified that at the time of trial he was being held at the Tazewell County

jail on pending felony charges. Burgess testified that he met the defendant in jail in March 2007

and began sharing a cell with him in April 2007. He shared a cell with the defendant for four to

five months; they were assigned new cellmates when they were caught making jailhouse alcohol.

In July 2007, the defendant told Burgess that it would have almost been Silven’s birthday if she

were alive. Burgess testified that the defendant paced their cell and then said, “That little shit

was going to tell on me if I didn’t stop.” After a pause, the defendant said, “I just slapped her.

Things got way out of hand.”

Burgess also testified that approximately two weeks later he was present during a

conversation between the defendant and another person regarding Silven. The defendant told

that person that Silven hit her head while jumping on a trampoline. Burgess testified that the

defendant looked at him, winked and said, “Isn’t that right, Burgess?” Burgess testified that he

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did not make a statement to the police regarding the defendant until January 5, 2008.

Denise Daugherty testified that she was a reading program assistant at Lincoln School in

September 2006, and worked with Silven’s kindergarten class. Daugherty testified that Silven

did not appear sick or complain of any ailments on September 8, 2006. Silven drew a picture of

herself and did not have any difficulty in following instructions or completing the project.

Daugherty also testified that she did not know whether a DARE officer had visited the

kindergarten class at any time prior to September 8, 2006, but that she thought that the DARE

officer usually visited the school in the middle of the school year.

Sherri Moon testified that she was Silven’s kindergarten teacher at Lincoln School in

September 2006. Silven did not have difficulty completing her tasks on September 8, 2006.

Silven did not appear ill that week, nor did she complain of headaches. Moon testified that she

was not aware of any playground accidents the week of September 5 through September 8, 2006.

Moon did not recall a DARE officer visiting the school before September 8, 2006.

Nathan Ralph testified that he was Jeff Ahlers’ cellmate in October 2007 in the

McDonough County jail. Prior to his testimony, the parties engaged the court in a discussion

over Ralph’s expected testimony. Defense counsel stated he was concerned that Ralph’s

testimony was going to violate an order previously granted that excluded Ralph’s hearsay

testimony and requested an offer of proof. The State represented that it was not going to elicit

the contents of any conversation between Ralph and Ahlers.

“THE COURT: And you’re not offering any hearsay under an exception.

Is that my understanding?

THE STATE: No, just his knowledge--

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 THE COURT: That a conversation occurred between Ahlers and this

witness.

THE STATE: Yes.”

Ralph testified that he discussed the defendant with Ahlers in October 2007. The State

then asked Ralph whether Ahlers discussed with him “whether he may have had any

information.” The defendant objected, and the court sustained the objection. The State then

asked Ralph, “And did you have, back in October when you first met with Mr. Ahlers, did he

discuss with you whether he wanted to come forward with some information?” The defendant

objected again, and the court overruled the objection. Ralph asked the State to repeat the

question. The State asked, “Did Mr. Ahlers confide in you that he had some reservations about

coming forward with some information?” Ralph answered, “Yes.”

Dr. Larry Blum testified that he was a forensic pathologist and that he reviewed Silven’s

autopsy protocol, photographs from the autopsy and hospital and other reports associated with

Silven’s death. Based upon his review of the materials, Dr. Blum testified that Silven died from

a closed-head injury that resulted in subdural hemorrhage and brain swelling. Dr. Blum opined

that Silven sustained the head injury sometime between Saturday morning and Sunday afternoon

when she was found seizing. Dr. Blum also opined that Silven’s injuries were not accidental but

had been inflicted by a blunt instrument.

Michael Green testified that he was an assistant State’s Attorney in Tazewell County.

Green testified that he was assigned to prosecute a case against Joseph Burgess. Burgess was

charged with aggravated arson, a Class X felony, among other felonies. Green testified that

Burgess had been offered a plea agreement of a 22-year cap in exchange for his guilty plea to

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aggravated arson. Burgess would still have a sentencing hearing and could offer in mitigation

evidence that he helped law enforcement solve other crimes.

Sergeant Richard Johnston testified that he worked as a correctional officer at the

Tazewell County jail. Johnston testified regarding the security cameras at the jail. Johnston also

testified that to his knowledge no one had successfully made jailhouse alcohol at the new

Tazewell County jail. Johnston also investigated the incident involving Burgess’s attempt to

make jailhouse alcohol. Based upon his investigation, Johnston did not think that Burgess had

made jailhouse alcohol in the past.

Deputy Sheriff Steven Holt of the McDonough County sheriff’s office testified that he

was the lead investigator into Silven’s death. At the hospital on September 10, 2006, Deputy

Holt spoke to Dr. Dabash. Deputy Holt testified that Dr. Dabash told him that Silven’s injuries

were 10 to 12 hours old and no older. Deputy Holt also testified that he did not make any

attempts to get a search warrant for the defendant’s home on September 10, 2006, nor did he

send any officers to secure the house.

Deputy Holt testified that he and other officers searched the defendant’s home on

September 12, 2006, pursuant to the defendant’s consent. Deputy Holt testified that photographs

were taken that day of shoes found in the residence, but that the photographs were not sent to the

state laboratory for comparison to the pattern found on Silven’s shirt. Deputy Holt further

testified that he interviewed Erin numerous times and that he told her that he believed either she,

the defendant or Erik had beaten Silven. As investigators interviewed people in connection with

Silven’s death, references to methamphetamine and other drugs were numerous. The sheriff’s

office contacted the federal authorities to investigate the drug allegations. Deputy Holt was not

19
involved in the drug investigation but he was aware of it. Through these investigations, Deputy

Holt became aware that the defendant used and sold methamphetamine.

Deputy Holt also testified regarding rumors of a party at the defendant’s house on

Saturday, September 9, 2006. However, no one ever reported actually being present at the

rumored party, and the defendant and Erin denied that there was any party. Deputy Holt also

testified regarding a taped conversation between Erin and the defendant while the defendant was

in jail. In that conversation, Erin refers to other people who may have come to the defendant’s

home on Saturday. However, Deputy Holt was not able to ascertain who these other people may

have been. Deputy Holt testified that Erin told him that the only adults present at the defendant’s

home the weekend in question were herself, the defendant and her brother Erik. Deputy Holt

also testified that he thought that Erin put Silven to bed on Saturday night.

The defendant testified that he met Erin in February 2006 and that Erin and Silven began

spending the night at his house in late April or early May 2006. Erin and Silven stayed at the

defendant’s house three or four nights per week.

The defendant testified that on Friday, September 1 through Monday, September 4, 2006,

he and Erin participated in a yard sale in Colchester, Illinois, and periodically smoked

methamphetamine. Silven was with Erin’s mother that weekend. On Monday, September 5,

2006, the defendant and Erin awakened at approximately 9 a.m. when Scott Kepple and Jill

Goodpasture came into his house crowing like a rooster. The defendant testified that they all

went back to Colchester and smoked more methamphetamine. Later, he and Erin picked up

Silven and brought her back to the defendant’s home.

On Tuesday, September 5, 2006, the defendant and Erin drove Silven to school in the

20
morning. During the day, the defendant and Erin smoked more methamphetamine. On

Wednesday, Kepple and Goodpasture came to the defendant’s house in the evening, and they all

smoked methamphetamine while Silven watched a movie. The defendant testified that no one

ever smoked methamphetamine in front of Silven when the defendant was present. He and Erin

did not sleep Wednesday night. The defendant testified that he also smoked methamphetamine

on Thursday.

The defendant testified that on Friday, September 8, 2006, Erin went to the store

sometime after 11 p.m., after she put Silven to bed. At approximately midnight, Larry Leasman

arrived at the defendant’s house. The defendant testified that he and Leasman smoked

methamphetamine in the defendant’s garage. The defendant also testified that Leasman went

into the house once to use the bathroom.

The defendant slept on a futon in the garage on Friday night and awoke sometime after 5

a.m. on Saturday when Erin came out to the garage. Silven came out to the garage shortly

thereafter. Before Silven came outside, the defendant and Erin were preparing to smoke

methamphetamine. The defendant then took Silven inside the house to cook breakfast. Silven

did not want to go with the defendant but Erin encouraged her to go, telling her it would be fun.

Silven did not cry, and the defendant did not carry her into the house. The defendant and Silven

made breakfast, and 10 minutes later, Erin came in the house.

The defendant testified that Silven complained once or twice of a headache on Saturday.

The defendant assumed that the headache was due to Silven’s new glasses. The defendant also

testified that Silven did not appear to be as active as normal on Saturday and that Silven wanted

to be with Erin most of the day. Sometime Saturday morning, the defendant and Silven went on

21
a five-minute ride on the defendant’s four-wheeler. The defendant testified that nothing

happened on that ride that would have caused any injury to Silven.

That afternoon, Erin put Silven to bed because Silven was not feeling well that day. Erin

then went to pick up Brett. Erin was gone for approximately 45 minutes to an hour. The

defendant testified that he went inside the house to take a shower while Erin was gone, and he

saw Silven sleeping. When Brett arrived, he and Silven went outside to jump on the trampoline.

Silven did not jump for long and then sat down on a chair to watch Brett.

That night, Silven got ready for bed and the defendant tucked in her blankets. On cross-

examination, he testified that both he and Erin put Silven to bed that night. The defendant

testified that he did not see Silven again until Sunday. The defendant denied smoking any

methamphetamine on Saturday and testified that he did not see Erin smoke any of the drug that

day.

The defendant testified that after Silven went to bed, Erik called because his truck had

lost a tire. Erin went to pick up Erik and brought him back to the defendant’s house. The

defendant testified that Erin was gone for approximately five minutes and he stood outside

waiting for them to return. The defendant then went back to the truck with Erik to fix the tire.

The defendant testified that he and Erik were gone for approximately 15 minutes. Erik left again

at around 8 p.m. After Erik left, the defendant noticed that Erin looked sick. The defendant told

Erin to go lie down and he left to get food and medicine for Erin and Silven. The defendant left

at 8:30 p.m. and returned at approximately 10 p.m. The defendant called Erin’s cell phone when

he got to her house to retrieve the medicine. He called her three times at approximately 9:35

p.m., but Erin did not answer the telephone. The defendant left Erin’s house and went to buy fast

22
food. Erin was sleeping when he returned home. Silven was also sleeping, and Erin told the

defendant not to wake her.

The defendant went to bed at 10:30 p.m., and Erin awakened him at 1 p.m. on Sunday.

The defendant thought it unusual that Silven was still asleep. The defendant looked into Silven’s

room on his way to the bathroom and noticed that Silven was not fully covered with her blanket,

which he also thought was unusual. The defendant walked into her room and heard Silven

wheezing. The defendant yelled for Erin and they both tried to wake up Silven.

The defendant drove Erin to the hospital. The defendant testified that he does not

remember much about his time at the hospital and that he does not remember turning his back on

Silven. The defendant also did not remember telling anyone that Silven had fallen at school. At

some point, the defendant went home and got Erin’s clothes and glucose pills from the closet in

Silven’s room. On his way back to the hospital, Erin telephoned and told him that she and her

parents were driving to Peoria. They made arrangements to meet along the route to Peoria, and

Erin got into the defendant’s vehicle. The defendant testified that his conversation with Erin

regarding the doctor’s description of Silven’s injuries was upsetting. Erin told him to pull over

the vehicle. He did, and Erin’s mother approached the car and told Erin to get into her car.

Erin’s mother told the defendant to go home and ride to the hospital with his parents. The

defendant went home, but was unable to contact his parents. The defendant testified that Erin’s

mother telephoned him and told him that they did not want him at the hospital. The defendant

did not go the hospital in Peoria.

That evening, the defendant went to Kepple and Goodpasture’s home and smoked

methamphetamine. The defendant testified that he told Kepple and Goodpasture that he did not

23
know why Erin’s family did not want him at the hospital. The defendant did not remember

asking them if they thought someone was going to call the police, but testified that he could have

made such a statement due to his impression that Erin’s mother was accusing him of hurting

Silven. The defendant did not remember making a similar statement to Hocker that same

evening. The defendant did not attend Silven’s funeral because Erin and members of her family

told him not to come to the funeral.

The defendant testified that when he smoked methamphetamine he felt alert, awake and

focused. The defendant felt tired and would sleep for a long time when he was “coming down”

from the influence of the drug. The defendant testified that he never locked the doors of his

house. In addition, the defendant testified that the windows were not nailed shut. There were

two windows in Silven’s room.

The defendant further testified that Silven never said anything to him to indicate that she

knew that he or her mother were using drugs. Silven never said anything to the defendant about

a DARE officer, nor did she ever threaten the defendant that she was going to tell someone about

his drug use. The defendant testified that he told Erin not to go to the sheriff’s office because the

police were harassing Erin, and he did not want Erin to become upset by the questioning.

The defendant testified that at the time of trial he was serving a sentence for a federal

drug conviction. The defendant went to the police and confessed regarding his involvement with

methamphetamine and subsequently pled guilty to charges in federal court. The defendant was

arrested on January 10, 2007, and placed in the Tazewell County jail. The defendant met Jeff

Ahlers at an Alcoholics Anonymous meeting in the jail. The defendant testified that he and

Ahlers were not friends and never discussed their families. The defendant also denied ever

24
discussing Silven or her death with Ahlers.

The defendant testified that Burgess had been his cellmate but denied making jailhouse

alcohol with him. The defendant discussed Erin and Silven with Burgess and showed him

pictures. The defendant denied ever telling Burgess that Silven was going to tell someone about

his drug use or that he slapped her and things got carried away. The defendant also testified that

he never winked at Burgess while telling another inmate about Silven’s death.

The defendant testified that the week before his testimony at trial he was being held at the

McDonough County jail and saw State’s Attorney Hoyle visit the jail. The defendant testified

that Hoyle met with Ahlers in the hallway near the defendant’s cell. Hoyle told Ahlers that he

had brought Ahlers a copy of his statement and the questions that Hoyle was going to ask him at

trial. Hoyle also told Ahlers to say that the defendant struck Silven in the face, rather than use

the word “punched.” The defendant testified that Hoyle also met with Burgess that day and told

him that he had brought Burgess a copy of his statement and the questions Hoyle would ask him

at trial. Hoyle also told Burgess that he was concerned with one aspect of Burgess’s statement

and told him that Burgess needed to have his statement straight. The defendant testified that

Burgess then said, “Well, I’ll say whatever you want me to say if you’re gonna help me out with

my case.” Hoyle told him not to worry about that.

The record also contains a bystander’s report regarding the facts surrounding two

questions submitted by the jury during its deliberations. First, the jury requested transcripts of

the testimony of Drs. Blum and Mitchell. The court responded, via written note, that the

transcripts of the testimony were not available and instructed the jurors to use their best

recollection of the testimony. The attorneys for the State and the defendant were not consulted

25
prior to the court’s response to the jury. However, the attorneys concurred with the court’s

response upon being notified. The defendant was not present, and his presence was not

discussed.

Second, the jury asked whether the court could define “great bodily harm.” The court

conferred in chambers with defense counsel and the State’s Attorney regarding this request. The

court answered the jury via handwritten note, stating “No.” The defendant was not present

during the conference, and his presence was not discussed.

The jury found the defendant guilty of first degree murder and endangering the life of a

child. On June 27, 2008, the defendant filed a motion for new trial. The defendant raised a

number of purported errors in that motion, including (1) the trial court erred by denying his

motion to exclude certain testimony of Heather Connor; (2) the trial court erred by denying his

motion to exclude the testimony of certain jailhouse informants; (3) the trial court erred by

failing to conduct a pretrial hearing to determine whether the informants’ testimony was reliable;

(4) the trial court erred by allowing certain testimony of Nathan Ralph; (5) the court erred by

communicating with the jury outside of the defendant’s presence; (6) the court erred by failing to

strictly comply with Supreme Court Rule 431(b); and (7) the evidence was insufficient to prove

him guilty beyond a reasonable doubt. The motion for new trial was denied. The defendant was

sentenced to 30 years’ imprisonment for first degree murder and a concurrent term of 10 years for

endangering the life of a child. The defendant now appeals his conviction.

II. ANALYSIS

A. Sufficiency of the Evidence

First, the defendant claims that the State did not present sufficient evidence to prove he

26
was guilty beyond a reasonable doubt of first degree murder. When reviewing a challenge to the

sufficiency of the evidence, the reviewing court’s function is not to retry the defendant. People v.

Milka, 211 Ill. 2d 150, 178, 810 N.E.2d 33, 49 (2004). Rather, we must view the evidence in the

light most favorable to the State and determine whether any rational trier of fact could have

found the elements of the crime proven beyond a reasonable doubt. People v. Collins, 106 Ill. 2d

237, 261, 478 N.E.2d 267, 277 (1985). “Under this standard, a reviewing court must allow all

reasonable inferences from the record in favor of the prosecution.” People v. Bush, 214 Ill. 2d

318, 326, 827 N.E.2d 455, 460 (2005). This standard of review applies, “ ‘regardless of whether

the evidence is direct or circumstantial [citation], and regardless of whether the defendant

receives a bench or jury trial [citation].’ ” People v. Wheeler, 226 Ill. 2d 92, 114, 871 N.E.2d

728, 740 (2007), quoting People v. Cooper, 194 Ill. 2d 419, 431, 743 N.E.2d 32 (2000). The trier

of fact determines the credibility of the witnesses, the weight to be given to testimony, and the

reasonable inferences to be drawn from the evidence. People v. Saxon, 374 Ill. App. 3d 409,

416, 871 N.E.2d 244, 250 (2007). “A reversal is warranted only if the evidence is so improbable

or unsatisfactory that it leaves a reasonable doubt as to defendant’s guilt.” Saxon, 374 Ill. App.

3d at 416, 871 N.E.2d at 250.

“ ‘A conviction can be sustained upon circumstantial evidence as well as upon direct, and

to prove guilt beyond a reasonable doubt does not mean that the jury must disregard the

inferences that flow normally from the evidence before it.’ ” People v. Patterson, 217 Ill. 2d 407,

435, 841 N.E.2d 889, 905 (2005), quoting People v. Williams, 40 Ill. 2d 522, 526, 240 N.E.2d

645 (1968). “Where evidence is presented and such evidence is capable of producing conflicting

inferences, it is best left to the trier of fact for proper resolution.” People v. McDonald, 168 Ill.

27
2d 420, 447, 660 N.E.2d 832, 843 (1995). “When weighing the evidence, the trier of fact is not

required to disregard inferences that flow from the evidence, nor is it required to search out all

possible explanations consistent with innocence and raise them to a level of reasonable doubt.”

McDonald, 168 Ill. 2d at 447, 660 N.E.2d at 843.

A person commits first degree murder if he performs the acts that cause the death of

another with the intent to kill or do great bodily harm to that individual. 720 ILCS 5/9–1(a)(1)

(West 2006). The defendant was charged with striking Silven in the head and shoving her with

his hands with the intent to do great bodily harm to her, thereby causing her death.

The undisputed medical evidence in this case established that Silven died from blunt head

trauma. Drs. Mitchell and Blum agreed that Silven had sustained the blows to her head within

the 24 hours before she was found having seizures on Sunday, October 10, 2006. Dr. Dabash

testified that Silven had sustained the injuries leading to her death at least 24 hours before she

was found seizing. In addition, Dr. Dabash testified that he believed that Silven’s injuries were

the result of child abuse. Likewise, Drs. Mitchell and Blum both opined that Silven’s injuries

were not accidental, but had been intentionally inflicted by an instrument, which could have been

a human hand or foot.

In the 24 hours before Silven was found having seizures, she was at the defendant’s home

with Erin and the defendant. During that same period, she was left alone with the defendant

when Erin left to pick up Brett and later to pick up Erik. In addition, Erin testified that the

defendant put Silven to bed on Saturday night. The defendant also testified on direct

examination that he tucked Silven into bed that night. The defendant was also alone with Silven

on Friday night while Erin went to buy magazines.

28
 The State also presented evidence that the defendant made statements from which a

reasonable jury could infer consciousness of guilt. See People v. Robinson, 391 Ill. App. 3d 822,

836, 909 N.E.2d 232, 246-47 (2009). Jill Goodpasture testified that the defendant was concerned

that someone was going to call the police on Sunday, October 10, 2006. Matthew Hocker

testified that the defendant expressed concern that the police were going to arrest him.

Further, the State presented evidence that the defendant had a motive for hitting Silven.

Jeff Ahlers testified that the defendant believed Silven had spoken to a DARE officer about the

defendant’s drug use. Similarly, Joseph Burgess testified that the defendant told him that Silven

“was going to tell on me if I didn’t stop.” Finally, Ahlers and Burgess both testified that the

defendant admitted to them that he had hit Silven. Viewing this evidence in the light most

favorable to the State, we conclude that a reasonable jury could have found the defendant guilty

of first degree murder beyond a reasonable doubt.

Next, the defendant contends that the evidence was insufficient to prove him guilty

beyond a reasonable doubt of endangering the life or health of a child. 720 ILCS 5/12–21.6(a)

(West 2006). The defendant was charged with wilfully causing or permitting Silven to be placed

in circumstances that endangered her life or health in that the defendant used illegal narcotics and

failed to provide necessary care and medical attention for Silven, which was a proximate cause of

Silven’s death. Ahlers testified that the defendant had been taking methamphetamine and had

not slept for a few days when he hit Silven in the head. The defendant also told Ahlers that

Silven had been hurt when he hit her. The medical evidence showed that Silven had been hit in

the head five times, and that one of the bruises extended through Silven’s scalp to her occipital

bone. Further, Silven was hit so hard as to cause bleeding in her brain and swelling of the brain,

29
leading to her death. Thus, the evidence was sufficient to prove the defendant guilty of

endangering the life or health of a child.

B. Supreme Court Rule 431(b)

The defendant contends that the trial court failed to strictly comply with Supreme Court

Rule 431(b) because the potential jurors were not given an opportunity to respond to questions

regarding their understanding and acceptance of the principles set forth in that rule. The

defendant argues that this error violated his constitutional right to a fair trial. The defendant also

maintains that the court’s error was not harmless. The State agrees with the defendant that the

court did not substantially comply with Rule 431(b). However, the State argues that the court’s

error was harmless.

Supreme Court Rule 431(b) was passed to ensure compliance with the supreme court’s

decision in People v. Zehr, 103 Ill. 2d 472, 469 N.E.2d 1062 (1984). Zehr held that it was

reversible error where the trial court refused to ask questions proffered by the defendant

concerning the presumption of innocence and the State’s burden to prove the defendant guilty

beyond a reasonable doubt, and the subject matter of those questions was not otherwise included

during voir dire. Zehr, 103 Ill. 2d at 476-78, 469 N.E.2d at 1063-64. The rule was amended in

2007, deleting the phrase “If requested by the defendant,” from the beginning of the paragraph.

Effective May 1, 2007, Rule 431(b) provides:

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

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

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

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

30
 reasonable doubt; (3) that the defendant is not required to offer any evidence on

his or her own behalf; and (4) that the defendant’s failure to testify cannot be held

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

the defendant’s failure to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to

respond to specific questions concerning the principles set out in this section.”

Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431, eff. May 1, 2007.

“ ‘The supreme court rules are not merely suggestions to be complied with if convenient but

rather obligations which the parties and the courts are required to follow.’ ” People v. Reed, 376

Ill. App. 3d 121, 125, 875 N.E.2d 167, 171 (2007), quoting Medow v. Flavin, 336 Ill. App. 3d

20, 36, 782 N.E.2d 733, 746-47 (2002). We review de novo issues concerning the application of

a supreme court rule. Reed, 376 Ill. App. 3d at 125, 875 N.E.2d at 171.

The parties appear to argue this issue as an issue of harmless error. Our review of the

record, however, indicates that the proper framework for the analysis of this issue is the plain

error rule. To properly preserve an issue for appellate review, the defendant must object at trial

and raise the issue in a posttrial motion. People v. Allen, 222 Ill. 2d 340, 350, 856 N.E.2d 349,

351 (2006). Although the defendant in this case did raise this issue in his motion for new trial,

the defendant did not object during voir dire to the court’s failure to strictly comply with Rule

431(b). Thus, the issue was forfeited.

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

brought to the attention of the trial court.” 134 Ill. 2d R. 615(a). “The plain-error doctrine does

not instruct a reviewing court to consider all forfeited errors.” People v. Herron, 215 Ill. 2d 167,

31
177, 830 N.E.2d 467, 474 (2005). A reviewing court will reach a forfeited error affecting

substantial rights in two circumstances. Herron, 215 Ill. 2d at 178, 830 N.E.2d at 475. First, the

court may consider a forfeited error “where the evidence in a case is so closely balanced that the

jury’s guilty verdict may have resulted from the error and not the evidence.” Herron, 215 Ill. 2d

at 178, 830 N.E.2d at 475. Second, a reviewing court may consider a forfeited error “where the

error is so serious that the defendant was denied a substantial right, and thus a fair trial.” Herron,

215 Ill. 2d at 179, 830 N.E.2d at 475. In other words, there are two categories of plain error in

Illinois: (1) prejudicial errors, which are “errors that may have affected the outcome in a closely

balanced case”; and (2) presumptively prejudicial errors, which are “errors that may not have

affected the outcome, but must still be remedied.” Herron, 215 Ill. 2d at 185, 830 N.E.2d at 478-

79. The burden of persuasion remains with the defendant in both instances. Herron, 215 Ill. 2d

at 187, 830 N.E.2d at 480.

The first step in any plain error analysis is to determine whether clear or obvious error

occurred. People v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 410-11 (2007). Here, the

trial court informed the jury venire of the principles set forth in Rule 431(b) but did not provide

the jurors with an opportunity to respond to questions regarding whether the jurors understood

and accepted the principles. Because Rule 431(b) requires the court to ask these questions of

potential jurors, the court erred by neglecting to ask the jurors if they understood and accepted

each of the principles listed in the rule.

Our conclusion that an error occurred here does not end our analysis, however.

Piatkowski, 225 Ill. 2d at 566, 870 N.E.2d at 411. Next, we must determine whether the

defendant has met his burden to show that either the evidence against him was closely balanced

32
or that the error was so serious that he was denied a substantial right. Piatkowski, 225 Ill. 2d at

566, 870 N.E.2d at 411. In this case, the evidence against the defendant was closely balanced.

“Whether the evidence is closely balanced is, of course, a separate question from whether the

evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge.”

Piatkowski, 225 Ill. 2d at 566, 870 N.E.2d at 411. Thus, while we have determined that the State

provided sufficient evidence to find the defendant guilty beyond a reasonable doubt, the evidence

was not overwhelming. The only direct evidence tying the defendant to Silven’s death was the

testimony of jailhouse informants Burgess and Ahlers. Our supreme court has stated that the

credibility of informant testimony is a matter for a jury and can be the basis for a guilty verdict.

People v. Manning, 182 Ill. 2d 193, 210-11, 695 N.E.2d 423, 431 (1998). However, such

testimony should also be treated with caution. People v. Williams, 65 Ill. 2d 258, 267, 357

N.E.2d 525, 529-30 (1976).

Burgess and Ahlers each testified that the defendant, at separate times, confessed that he

hit Silven preceding her death. The defendant denied making any such statements. The

remaining circumstantial evidence against the defendant tends to prove that he had an

opportunity and a motive for hitting Silven. However, that circumstantial evidence alone was not

sufficient to prove the defendant guilty beyond a reasonable doubt of the crimes charged. In

these circumstances, we conclude that the evidence against the defendant was closely balanced.

Therefore, the trial court’s error in this case prejudiced the defendant. In Herron, the

court found plain error and that the evidence was closely balanced. Herron, 215 Ill. 2d at 187-94,

830 N.E.2d at 480-84. In determining that the error required the reversal of the defendant’s

conviction, the court stated that the defendant in that case need not prove that the error actually

33
misled the jury. Herron, 215 Ill. 2d at 193, 830 N.E.2d at 483. Further, the court stated:

“If the defendant carries the burden of persuasion and convinces a reviewing court

that there was error and that the evidence was closely balanced, the case is not

cloaked with a presumption of prejudice. The error is actually prejudicial, not

presumptively prejudicial. *** When there is error in a close case, we choose to

err on the side of fairness, so as not to convict an innocent person.” Herron, 215

Ill. 2d at 193, 830 N.E.2d at 483.

See also Piatkowski, 225 Ill. 2d at 566, 870 N.E.2d at 411.

The plain error doctrine considers unpreserved error where the evidence is close,

regardless of the serousness of the error. Herron, 215 Ill. 2d at 186-87, 830 N.E.2d at 479.

Furthermore, despite the fact that the Rule 431(b) factors were covered just not in the proper

manner, we cannot simply ignore this error as a de minimus exception to the first prong of the

plain error rule. See People v. Lewis, 234 Ill. 2d 32, 912 N.E.2d 1220 (2009) (no de minimus

exception to second prong of plain error review). Thus, we conclude that the court’s error in this

case prejudiced the defendant, as the evidence against him was closely balanced. We therefore

reverse the defendant’s conviction and remand for a new trial.

C. Testimony of Heather Connor

Although we have already found reversible error in this case, we will consider other

issues raised by the defendant that are likely to recur upon remand. People v. Fuller, 205 Ill. 2d

308, 346, 793 N.E.2d 526, 550 (2002). Next, the defendant contends that the trial court abused

its discretion by allowing Heather Connor to testify as to certain statements made by Erin. The

defendant raises several objections to the propriety of the admittance of this testimony. The

34
defendant argues: (1) Connor’s testimony was inadmissible under Crawford v. Washington, 541

U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004); (2) Erin’s statements were inadmissible

because they were lay opinion testimony as to the ultimate question of fact presented in the case;

(3) Erin’s statements were not admissible under the excited utterance exception to the hearsay

rule; and (4) the prejudice of these statements was compounded by Erin’s reference during cross-

examination to a polygraph test. The State claims that the defendant has forfeited this issue

because he did not object to the testimony at trail. On the merits of the issue, the State maintains

that: (1) Connor’s testimony regarding Erin’s statements do not fall within Crawford because

Erin’s statements were not testimonial; (2) Connor’s testimony was not opinion testimony and

Erin’s statements were not an opinion; (3) Connor’s testimony as to Erin’s statements were

admissible as an excited utterance; and (4) Erin’s reference to a polygraph test was inadvertent

and made in response to a question by defense counsel.

The defendant filed a motion in limine challenging the admissibility of Connor’s

testimony, and included the issue in his posttrial motion. He did not, however, object to the

testimony during trial. We note that the Illinois Supreme Court has stated that a motion in limine

or an objection at trial in conjunction with a posttrial motion preserves an issue for appeal.

People v. Hudson, 157 Ill. 2d 401, 434-35, 626 N.E.2d 161, 175 (1993). However, the court has

also stated that when a motion in limine is denied, a contemporaneous objection to the evidence

at the time it is offered is required to preserve the issue for review. Simmons v. Garces, 198 Ill.

2d 541, 569, 763 N.E.2d 720, 738 (2002). Regardless of whether the issue has been forfeited

here, we choose to consider the merits of the issue because the issue is likely to recur upon

remand.

35
 Connor testified that Erin asked her, “Did he hurt her?” In addition, Connor testified that

Erin said, “I will never trust him with her again.” Erin herself did not testify regarding these

statements, nor did she give her opinion at trial as to who hit Silven. Thus, the issue is whether

Connor’s testimony, detailing statements made to her by Erin, was properly admitted.

The defendant first claims that his sixth amendment rights were violated when the court

allowed Connor’s testimony because Erin’s statements were testimonial and Erin was not subject

to cross-examination as to those statements. The sixth amendment’s confrontation clause

provides, “In all criminal prosecutions, the accused shall enjoy the right *** to be confronted

with the witnesses against him.” U.S. Const., amends. VI, XIV. Where testimonial evidence is

at issue, “the Sixth Amendment demands what the common law required: unavailability and a

prior opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 68, 158 L. Ed.

2d 177, 203, 124 S. Ct. 1354, 1374 (2004). Thus, “a testimonial statement of a witness who does

not testify at trial is never admissible unless (1) the witness is unavailable to testify, and (2) the

defendant had a prior opportunity for cross-examination.” (Emphasis in original.) People v.

Stechly, 225 Ill. 2d 246, 279, 870 N.E.2d 333, 354 (2007). If the statements are not testimonial,

“the confrontation clause places no restriction on their introduction (although they are still

subject to ‘traditional limitation upon hearsay evidence’).” Stechly, 225 Ill. 2d at 279, 870

N.E.2d at 354, quoting Davis v. Washington, 547 U.S. 813, 821, 165 L. Ed. 2d 224, 237, 126 S.

Ct. 2266, 2273 (2006).

Although the United States Supreme Court has declined to define “testimonial,” the

Illinois Supreme Court in Stechly stated that there appear to be two components to a testimonial

statement. Stechly, 225 Ill. 2d at 281, 870 N.E.2d at 355. First, a testimonial statement must be

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made in a solemn fashion. Stechly, 225 Ill. 2d at 281, 870 N.E.2d at 355. Second, the statement

must be intended to establish a particular fact. Stechly, 225 Ill. 2d at 282, 870 N.E.2d at 355.

Statements may be testimonial “even if not made directly to agents of the state.” Stechly, 225 Ill.

2d at 289, 870 N.E.2d at 359. To determine whether a statement made outside of police

interrogation is testimonial, the proper focus is on the declarant’s intent. Stechly, 225 Ill. 2d at

289, 870 N.E.2d at 359. “Would the objective circumstances have led a reasonable person to

conclude that their statement could be used against the defendant?” Stechly, 225 Ill. 2d at 289,

870 N.E.2d at 359.

In this case, Erin’s statements to Connor were not testimonial. Connor was a member of

the emergency medical personnel who were providing care for Silven and was not acting as an

agent of the State. In addition, a reasonable person in Erin’s circumstances would not have

believed that her statements could be used in a criminal prosecution against the defendant. Erin

made her statements to Connor after receiving information from Dr. Dabash that Silven had been

hit multiple times and her brain was bleeding. Her statements were not made in response to any

questioning by Connor. Erin did not identify the defendant, or anyone else, as the person who hit

Silven. Rather, Erin’s initial statement was a question to Connor followed by a statement that

she would never trust “him” with Silven again. A reasonable person would not conclude that

these ambiguous statements would be used in a criminal prosecution. Thus, Erin’s statements

were not testimonial.

If an out-of-court statement is nontestimonial, then traditional hearsay exceptions apply.

People v. Lisle, 376 Ill. App. 3d 67, 81, 877 N.E.2d 119, 132 (2007). Here, the State maintains

that Erin’s statements were admissible under the excited utterance exception to the hearsay rule.

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For a hearsay statement to be admissible under the excited utterance exception: “(1) there must

be an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2)

there must be an absence of time for the declarant to fabricate the statement; and (3) the

statement must relate to the circumstances of the occurrence.” Lisle, 376 Ill. App. 3d at 77, 877

N.E.2d at 128. To determine whether the excited utterance exception applies, we consider the

totality of the circumstances, “including time, the nature of the event, the mental and physical

condition of the declarant, and the presence or absence of self-interest.” Lisle, 376 Ill. App. 3d at

77, 877 N.E.2d at 128. “ ‘Whether a statement qualifies as an excited utterance is within the trial

court's discretion.’ ” People v. Robinson, 379 Ill. App. 3d 679, 681, 883 N.E.2d 529, 531 (2008),

quoting People v. Gwinn, 366 Ill. App. 3d 501, 517, 851 N.E.2d 902 (2006).

In this case, the totality of the circumstances do not indicate that Erin’s statements were

an excited utterance. Erin’s statements were not based upon her own observations of the injuries

inflicted upon Silven. Rather, the statements appear to be made after some reflection by Erin.

Erin asked a question, “Did he hurt her?” Then, she stated, “I will never trust her with him

again.” Erin did not state her observations regarding Silven’s injuries, but was apparently

reflecting upon what may have happened to Silven or who could have hurt her. Thus, Erin’s

statements do not fall within the excited utterance exception to the hearsay rule. We find that the

trial court abused its discretion by allowing Connor to testify as to these statements made by

Erin.

D. Testimony of Nathan Ralph

The defendant argues that the trial court erred by allowing Nathan Ralph’s testimony as to

statements made to him by Jeffrey Ahlers. The defendant maintains the testimony was

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inadmissible hearsay, elicited solely to bolster Ahlers’ credibility. In addition, the defendant

claims that Ralph’s testimony as to Ahlers’ statements violated the defendant’s constitutional

rights under the sixth amendment’s confrontation clause. The State claims that Ralph’s

testimony was admissible non-hearsay because Ahlers testified at trial and was subjected to

cross-examination by the defendant.

The testimony at issue here consisted of the following question by the State and answer

by Ralph.

“Q. Did Mr. Ahlers confide in you that he had some reservations about

coming forward with some information?

A. Yes.”

“ ‘Hearsay evidence is an out-of-court statement offered to prove the truth of the matter

asserted, and it is generally inadmissible due to its lack of reliability unless it falls within an

exception to the hearsay rule.’ ” People v. Caffey, 205 Ill. 2d 52, 88-89, 792 N.E.2d 1163, 118,

(2001), quoting People v. Olinger, 176 Ill. 2d 326, 357, 680 N.E.2d 321 (1997). In addition, the

Illinois Supreme Court has stated, “ ‘[t]he presence or absence in court of the declarant of the

out-of-court statement is * * * irrelevant to a determination as to whether the out-of-court

statement is hearsay.’ ” People v. Lawler, 142 Ill. 2d 548, 557, 568 N.E.2d 895, 899 (1991),

quoting M. Graham, Cleary & Graham's Handbook of Illinois Evidence §801.1, at 564-65 (5th

ed. 1990).

Here, Ralph testified that Ahlers confided in him that he had reservations about telling

anyone about information he had concerning the defendant. The State offered this evidence to

prove that Ahlers made such a statement to Ralph, as Ahlers had previously testified. Thus,

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Ralph’s testimony of Ahlers’ out-of-court statement to him was offered to prove that Ahlers told

Ralph he had information about the defendant but had reservations about revealing that

information, and was hearsay. Based upon Lawler, we decline to find the testimony nonhearsay

simply because Ahlers also testified at trial.

Further, at trial the State argued that in order to combat a possible impeachment of Ahlers

that Ralph’s testimony was offered to bolster Ahlers’ testimony against charges of fabrication

that Ahlers had reservations about coming forward with information. The State also indicated

that it had no hearsay exception to offer, and it was not going to offer hearsay-on-hearsay.

Generally, “proof of a prior consistent statement made by a witness is inadmissible

hearsay, which may not be used to bolster a witness’s testimony.” People v. House, 377 Ill. App.

3d 9, 19, 878 N.E.2d 1171, 1179 (2007). However, in an effort to rebut an express or implied

charge on cross-examination that the witness is motivated or has been influenced to testify falsely

or that his testimony is a recent fabrication, evidence can be admissible that the witness told the

same story before the motive or influence came into existence or before the time of the alleged

fabrication. People v. Cuadrado, 214 Ill. 2d 79, 90, 824 N.E.2d 214, 221 (2005); People v.

Walker, 211 Ill. 2d 317, 344, 812 N.E.2d 339, 354 (2004); accord Tome v. United States, 513

U.S. 150, 156, 130 L. Ed. 2d 574, 581, 115 S. Ct. 696, 700 (1995). For the admissibility of this

type of evidence, there must be an express or implied attack on these grounds on the witness

during cross-examination. The mere introduction of contradictory evidence is not sufficient.

Moore v. Anchor Organization for Health Maintenance, 284 Ill. App. 3d 874, 885, 672 N.E.2d

826, 834 (1996). Further, evidence of a prior consistent statement on direct examination in

anticipation of a cross-examination attack is improper. People v. Crockett, 314 Ill. App. 3d 389,

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407-08, 731 N.E.2d 823, 838 (2000). A “recent fabrication” charge can arise from negative

evidence that a witness did not speak of this matter at a time when he could have. People v.

Engle, 351 Ill. App. 3d 284, 289, 813 N.E.2d 761, 766 (2004). Prior consistent statements are

admitted solely for rehabilitative purposes, not as substantive evidence. Walker, 211 Ill. 2d at

344, 812 N.E.2d at 354. The prior consistent statement when it is properly admissible can be

testified to by either the witness himself or any other person with personal knowledge of the

statement. People v. Wurster, 83 Ill. App. 3d 399, 408, 403 N.E.2d 1306, 1314 (1980).

In the instant case, it is unclear that the proper foundation was laid for the admission of a

prior consistent statement to rebut the charge of recent fabrication. In fact, Ralph did not testify

specifically about a specific prior consistent statement. We are only told that the witness Ahlers

confided in Ralph that he had some reservations about coming forward with some information

and left to speculate about what that information was. Given the record in this case, there

appears to be no justification for the admission of Ralph’s testimony regarding the statements

allegedly made by the jailhouse informant Ahlers.

Below and on appeal, the State has not argued that Ralph’s testimony was admissible

under any other exception to the hearsay rule. We did not consider the applicability of any

hearsay exceptions in such a circumstance. Thus, in light of the circumstances set out above, the

trial court erred by allowing Ralph to testify as to the statements made to him by Ahlers in the

manner presented at the trial.

E. Trial Court’s ex parte Communications With the Jury

Next, the defendant argues that the trial court violated his constitutional right to appear

and participate in person at all proceedings involving his substantial rights when the trial court

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communicated with the jury twice outside of the defendant’s presence. In addition, the defendant

maintains that the State cannot meet its burden to establish beyond a reasonable doubt that the

defendant was not prejudiced by these ex parte communications. We have already determined

that the defendant’s conviction must be reversed and remanded for a new trial. Thus, we need

not determine whether the defendant’s rights were violated by the court’s ex parte

communications with the jury. However, we note that jury deliberations are a critical stage of the

proceedings against a defendant, and that a defendant has a constitutional right to be present in

person and by counsel during each critical stage of the trial. People v. McDonald, 168 Ill. 2d

420, 459, 660 N.E.2d 832, 849 (1995).

F. Motion to Exclude Testimony of Jailhouse Informants

Finally, the defendant contends that the trial court erred by failing to conduct a pretrial

hearing to determine the reliability of the testimony of Ahlers and Burgess and by denying the

defendant’s motion to exclude their testimony. The State maintains that the court did not err by

declining to conduct a pretrial hearing under section 115-21 of the Code of Criminal Procedure

of 1963 (the Code) (725 ILCS 5/115-21 (West 2006)). In addition, the State claims that the

defendant has not offered any reasons why the court abused its discretion by allowing the

testimony.

Section 115-21 of the Code “applies to any capital case in which the prosecution attempts

to introduce evidence of incriminating statements made by the accused to or overheard by [a

jailhouse] informant.” 725 ILCS 5/115-21(a), (b) (West 2006). In such cases, the trial court

shall conduct a hearing to determine whether the informant’s testimony is reliable. 725 ILCS

5/115-21(d) (West 2006). Here, the State did not seek the death penalty. See 720 ILCS 5/9–1(b)

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(West 2006). Thus, the court was not required to conduct a hearing to determine the reliability of

the informants’ testimony and did not err by declining to do so. The defendant offers no other

argument as to why the court abused its discretion in allowing Ahlers and Burgess to testify.

Thus, we conclude that the court did not err by denying the defendant’s motion.

III. CONCLUSION

Under the plain error rule, the defendant was prejudiced by the court’s failure to strictly

comply with Supreme Court Rule 431(b) because the evidence against him was closely balanced

and relied heavily upon the testimony of two jailhouse informants, Ahlers and Burgess.

However, the evidence presented was sufficient to find the defendant guilty of first degree

murder and endangering the life of a child and, thus, double jeopardy does not preclude a new

trial. People v. Hernandez, 231 Ill. 2d 134, 152, 896 N.E.2d 297, 309 (2008). Further, we

conclude the court erred by admitting certain testimony of Heather Connor and Nathan Ralph.

Accordingly, we reverse the defendant’s conviction and remand for a new trial.

Reversed and remanded for new trial.

O’BRIEN, P. J. and MCDADE, J. concurring.

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