People v. Jacobs

NO. 4-09-0878 Filed 11/1/10

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
DREW M. JACOBS, ) No. 07DT625
Defendant-Appellant. )
) Honorable
) Charles McRae Leonhard,
) Judge Presiding.
________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:
In May 2009, a jury found defendant, Drew M. Jacobs,

guilty of driving under the influence of alcohol and driving with

an alcohol concentration of 0.08 or more. In October 2009, the

trial court sentenced him to 24 months' conditional discharge.

On appeal, defendant argues (1) evidence of chemical

testing was improperly admitted, (2) the State failed to prove

him guilty beyond a reasonable doubt, (3) the trial court should

have entered judgment on the count of driving under the influ-

ence, (4) the State deprived him of a fair trial, and (5) the

court erred in giving certain jury instructions. We affirm.

I. BACKGROUND

In September 2007, defendant was charged by citation

with two counts of driving under the influence (625 ILCS 5/11-

501(a) (West 2006)). Defendant pleaded not guilty.

In December 2007, defendant filed a petition to rescind
statutory summary suspension and a motion to quash arrest and

suppress evidence. In April 2008, the trial court denied the

petition and the motion. Defendant appealed, and this court

affirmed the trial court's judgment. People v. Jacobs, No. 4-08-

0330 (April 15, 2009) (unpublished order under Supreme Court Rule

23).

In May 2009, defendant filed several motions in limine,

asking the trial court to prohibit the State from proffering

testimony pertaining to the horizontal gaze nystagmus (HGN) test

and a preliminary breath test (PBT). The court allowed the

motion regarding the HGN test and also allowed the motion as to

the PBT, subject to the defense opening the door at trial.

At defendant's jury trial, Monica Strandberg testified

she was a trooper with the Illinois State Police. On September

13, 2007, Strandberg was on routine patrol in Champaign County

when she observed a white Ford with its "bright lights on."

Strandberg stated it was a violation of the Vehicle Code to have

"your high beams on within 500 feet of another vehicle," so she

initiated a traffic stop at 2:50 a.m. As the driver of the Ford

entered a parking lot, "the rear tire hit the curb."

Trooper Strandberg approached the driver, identified as

defendant, and noticed "he had a flush face" and "red and glossy

eyes." She could also "smell a strong odor of an alcoholic

beverage coming from his breath." When she asked defendant

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whether he had been consuming alcohol, he responded he had two

beers. Defendant did not have any trouble producing his driver's

license and proof of insurance.

Strandberg then asked defendant to exit the vehicle to

perform field-sobriety tests. Defendant performed the nine-step-

walk-and-turn test, and Strandberg stated he did "fine." Defen-

dant then performed the one-legged-stand test, and Strandberg

considered his performance a failure because he "swayed slightly"

and "raised his arms more than six inches past his side." She

then placed defendant under arrest for driving under the influ-

ence of alcohol based on the strong smell of alcohol coming from

his breath, his failure on the field-sobriety test, his flush

face and red glassy eyes, and his "driving up over the curb."

Trooper Strandberg transported defendant to the police

station, issued him a citation, and read to him the warning to

motorists. Defendant then agreed to take a Breathalyzer test.

Strandberg testified she was certified to administer the test.

She used the Intox EC/IR and testified to a logbook the police

department maintains on the use of the machine. The test result

showed 0.11 at 4 a.m. Strandberg then issued defendant a second

citation for driving under the influence of alcohol over 0.08.

The State played the tape of the stop to the jury.

After the State rested its case, defense counsel moved for a

directed verdict, which the trial court denied.

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 The defense then called Dr. Ronald Henson, who testi-

fied as an expert in impaired-driving enforcement, field-sobriety

testing and blood- and breath-alcohol testing. Dr. Henson

reviewed documents relating to defendant's arrest. After review-

ing the video, Dr. Henson stated he did not notice any recognized

cues that would indicate defendant did not perform the one-

legged-stand test or the walk-and-turn test correctly. He then

opined there existed a "disconnect" between defendant's perfor-

mance and his 0.11 breath-alcohol reading.

On rebuttal, Todd Savage testified he was a breath-

alcohol technician with the Illinois State Police. The trial

court recognized him as an expert in the operation, maintenance,

and repair of the EC/IR instrument. Savage stated he travels

around to police agencies and sheriff's departments to make sure

the EC/IR devices are accurate and working properly. Upon

checking the devices for accuracy, he would note the results in a

logbook. He checked the accuracy of the EC/IR at the Champaign

County satellite jail on September 6, 2007, and again on October

4, 2007.

Following Savage's testimony, defense counsel moved for

a directed verdict at the close of all the evidence, which the

trial court denied. Following closing arguments, the jury found

defendant guilty.

In June 2009, defendant filed a posttrial motion, which

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the trial court denied. In October 2009, the court entered

judgment on the count of driving with a blood- or breath-alcohol

concentration (BAC) of 0.08 or more (625 ILCS 5/11-501(a)(1)

(West 2006)) and sentenced defendant to 24 months' conditional

discharge. This appeal followed.

II. ANALYSIS

A. Chemical Testing

Defendant argues the State improperly introduced the

results of the Breathalyzer test in its case in chief by failing

to provide a proper foundation that the device was tested regu-

larly for accuracy and was working properly. We disagree.

In determining the foundational requirements of breath-

test results, our supreme court has noted as follows:

"Such a foundation will include: (1) evi-

dence that the tests were performed according

to the uniform standard adopted by the Illi-

nois Department of Public Health, (2) evi-

dence that the operator administering the

tests was certified by the Department of

Public Health, (3) evidence that the machine

used was a model approved by the Department

of Health, was tested regularly for accuracy,

and was working properly, (4) evidence that

the motorist was observed for the requisite

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 20 minutes prior to the test and, during this

period, the motorist did not smoke, regurgi-

tate, or drink, and (5) evidence that the

results appearing on the 'printout' sheet can

be identified as the tests given to the mo-

torist." People v. Orth, 124 Ill. 2d 326,

340, 530 N.E.2d 210, 216-17 (1988).

Evidence that the Breathalyzer was regularly tested for

accuracy is among the elements of the foundation required for the

admission of the breath-test results. People v. Black, 84 Ill.

App. 3d 1050, 1052, 406 N.E.2d 23, 24 (1980). A "police offi-

cer's testimony about the inspection of the [B]reathalyzer may be

documented by introduction into evidence of the instrument

logbook, which is a public or official record." People v.

Boughton, 268 Ill. App. 3d 170, 173, 644 N.E.2d 471, 473 (1994);

see also People v. Thomas, 200 Ill. App. 3d 268, 281, 558 N.E.2d

656, 665-66 (1990) (finding copies of certification stamps and

logbook entries, along with an officer's testimony of inspection

dates, established proper foundation that Breathalyzer machine

was reliable and accurate); People v. White, 167 Ill. App. 3d

439, 442, 521 N.E.2d 563, 564 (1988) (finding logbook entries

constituted official documents); People v. Hester, 88 Ill. App.

3d 391, 395, 410 N.E.2d 638, 641 (1980) (holding "a page from the

instrument log book is admissible to satisfy a foundation re-

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quirement requisite to the admission of breath[-]test results

into evidence, namely, that the [B]reathalyzer was properly

tested for accuracy and in proper working condition").

In the case sub judice, Trooper Strandberg testified

that a logbook was maintained at the jail in relation to the

breath-test device. Every time the device is used, the test

subject's name is written down and the result entered. Over

defense counsel's objections, Strandberg testified the device was

required to be certified every 62 days and the certification

listed in the logbook. She indicated the device had been certi-

fied as accurate by a state trooper on September 6, 2007, and

again on October 4, 2007. The logbook entries were admitted into

evidence. We find the State established a proper foundation

through Trooper Strandberg that the device was tested regularly

for accuracy and was working properly. See Hester, 88 Ill. App.

3d at 395, 410 N.E.2d at 640 (finding even that "personal knowl-

edge, as to the events and procedures summarized in the log, is

not required of the testifying officer").

Defendant, however, argues the foundation testimony

regarding the accuracy of a Breathalyzer instrument violated the

confrontation clause of the United States Constitution in light

of the Supreme Court's decision in Melendez-Diaz v. Massachu-

setts, 557 U.S. , 174 L. Ed. 2d 314, 129 S. Ct. 2527 (2009).

The confrontation clause provides that "[i]n all

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criminal prosecutions, the accused shall enjoy the right *** to

be confronted with the witnesses against him." U.S. Const.,

amend. VI. This sixth-amendment right applies to the states

through the fourteenth amendment. People v. Stechly, 225 Ill. 2d

246, 264, 870 N.E.2d 333, 346 (2007).

In Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at

320, 129 S. Ct. at 2530, the defendant was charged with distrib-

uting and trafficking cocaine. At trial, the prosecution "sub-

mitted three 'certificates of analysis' showing the results of

the forensic analysis performed on the seized substances,"

including the weight of the seized bags and that the substance

contained cocaine. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d

at 320, 129 S. Ct. at 2531. The certificates were sworn to

before a notary public by state lab analysts as required by

Massachusetts law and were admitted as prima facie evidence of

the composition, quality, and net weight of the contraband

analyzed. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 320,

129 S. Ct. at 2531.

The defendant objected to the admission of the certif-

icates and argued the Supreme Court's confrontation-clause

decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d

177, 124 S. Ct. 1354 (2004), required the analysts to testify in

person. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 320,

129 S. Ct. at 2531. The objection was overruled, and a jury

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found the defendant guilty.

The Supreme Court noted the confrontation clause covers

testimonial statements and "[a] witness's testimony against a

defendant is thus inadmissible unless the witness appears at

trial or, if the witness is unavailable, the defendant had a

prior opportunity for cross-examination." Melendez-Diaz, 557

U.S. at , 174 L. Ed. 2d at 320-21, 129 S. Ct. at 2531, citing

Crawford, 541 U.S. at 54, 158 L. Ed. 2d at 194, 124 S. Ct. at

1365-66. Examples of testimonial statements include (1) ex parte

in-court testimony; (2) extrajudicial statements in formal

testimonial materials such as affidavits, depositions, prior

testimony, and confessions; (3) statements made under circum-

stances that would lead an objective witness reasonably to

believe the statements would be available for use at a later

trial; and (4) statements taken by police officers in the course

of interrogations. Crawford, 541 U.S. at 51-52, 158 L. Ed. 2d at

193, 124 S. Ct. at 1364.

The Supreme Court found the certificates were "func-

tionally identical to live, in-court testimony, doing 'precisely

what a witness does on direct examination.'" (Emphasis omitted.)

Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 321, 129 S. Ct.

at 2532, quoting Davis v. Washington, 547 U.S. 813, 830, 165 L.

Ed. 2d 224, 242, 126 S. Ct. 2266, 2278 (2006). The Court held

that "under our decision in Crawford the analysts' affidavits

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were testimonial statements, and the analysts were 'witnesses'

for purposes of the Sixth Amendment. Absent a showing that the

analysts were unavailable to testify at trial and that petitioner

had a prior opportunity to cross-examine them, petitioner was

entitled to '"be confronted with"' the analysts at trial."

Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 321-22, 129 S.

Ct. at 2532, quoting Crawford, 541 U.S. at 54, 158 L. Ed. 2d at

194, 124 S. Ct. at 1365.

In his concurring opinion, Justice Thomas reiterated

his view that "'the Confrontation Clause is implicated by extra-

judicial statements only insofar as they are contained in form-

alized testimonial materials, such as affidavits, depositions,

prior testimony, or confessions.'" Melendez-Diaz, 557 U.S. at

___, 174 L. Ed. 2d at 333, 129 S. Ct. at 2543 (Thomas, J.,

concurring), quoting White v. Illinois, 502 U.S. 346, 365, 116 L.

Ed. 2d 848, 865, 112 S. Ct. 736, 747 (1992) (Thomas, J., concur-

ring in part and concurring in the judgment, joined by Scalia,

J.). Justice Thomas joined the Court's opinion because the

certificates were affidavits and therefore testimonial state-

ments. Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 333, 129

S. Ct. at 2543 (Thomas, J., concurring).

The Supreme Court also stated the analysts' affidavits

did not qualify as official or business records. Melendez-Diaz,

557 U.S. at , 174 L. Ed. 2d at 328, 129 S. Ct. at 2538.

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"Business and public records are generally admissible absent

confrontation not because they qualify under an exception to the

hearsay rules, but because--having been created for the admini-

stration of an entity's affairs and not for the purpose of

establishing or proving some fact at trial--they are not testi-

monial." Melendez-Diaz, 557 U.S. at , 174 L. Ed. 2d at 329,

129 S. Ct. at 2539-40. The Court found the analysts' affidavits

were testimony against the defendant because they were prepared

specifically for use at trial. Melendez-Diaz, 557 U.S. at ,

174 L. Ed. 2d at 329-30, 129 S. Ct. at 2540.

We note the Supreme Court did not hold "that anyone

whose testimony may be relevant in establishing the chain of

custody, authenticity of the sample, or accuracy of the testing

device, must appear in person as part of the prosecution's case."

Melendez-Diaz, 557 U.S. at n.1, 174 L. Ed. 2d at 322 n.1,

129 S. Ct. at 2532 n.1. Thus, in this case, the question becomes

whether the testimony pertaining to the testing of the

Breathalyzer for accuracy was testimonial in nature.

We find the testimony and logbooks provided in this

case as to the certification of the Breathalyzer were not testi-

monial and established a sufficient foundation that it was

regularly tested and accurate. We also find our decision is not

contravened by the Supreme Court's decision in Melendez-Diaz. We

find support for this contention in a recent case from the Oregon

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Court of Appeals. In State v. Bergin, 231 Or. App. 36, 39, 217

P.3d 1087, 1088 (2009), the defendant argued the admission of

certificates attesting to the accuracy of the Intoxilyzer was in

error under Melendez-Diaz. The Oregon Court of Appeals disagreed

and stated, in part, as follows:

"The analyst certificates in Melendez-Diaz

were 'quite plainly affidavits,' that is,

fact statements sworn before an officer au-

thorized to administer oaths, and, for that

reason, within the core class of testimonial

statements described in Crawford. [Cita-

tion.] Intoxilyzer certificates of accuracy,

on the other hand, are not sworn under oath.

Further, the analyst certificates in

Melendez-Diaz served to prove directly a fact

that is an element of the crime that the

defendant was convicted of. Intoxilyzer

certificates bear a more attenuated relation-

ship to conviction: They support one fact

(the accuracy of the machine) that, in turn,

supports another fact that can establish

guilt (blood[-]alcohol level). Finally, the

Melendez-Diaz majority opinion emphasizes

that[,] when an analyst swears to the result

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 of a substance test, he or she knows that it

is for use at a specific later trial against

a specific defendant. [Citation.] The sub-

stance that was subjected to analysis was

seized from a particular defendant and the

sole purpose of the test was for use against

that defendant. Although Intoxilyzers pro-

duce evidence that is used only in criminal

prosecutions or administrative hearings, the

person who performs the test of a machine's

accuracy does so with no particular prosecu-

torial use in mind, and, indeed, there is no

guarantee that the machine will ever, in

fact, be used." (Emphases in original.)

Bergin, 231 Or. App. at 40-41, 217 P.3d at

1089.

The certifications of accuracy at issue here differ

from the affidavits in Melendez-Diaz and do not establish an

element of the offenses. The certifications were not compiled

during the investigation of a particular crime and do not

establish the criminal wrongdoing of defendant. Cf. People v.

McClanahan, 191 Ill. 2d 127, 133, 729 N.E.2d 470, 474 (2000)

(finding unconstitutional as violative of confrontation clause a

statute that allowed for the introduction of lab reports in lieu

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of actual testimony as prima facie evidence of the contents of

the substance at issue as the reports, inter alia, were not

business records because they were prepared during the course of

criminal investigations and requested by the State in anticipa-

tion of prosecutions). Instead, the certification does nothing

more than establish the machine had been tested and was working

properly. Thus, the evidence was not testimonial and its intro-

duction did not violate defendant's right to confront witnesses.

B. Sufficiency of the Evidence

Defendant argues the State failed to prove him guilty

beyond a reasonable doubt. We find this issue forfeited.

"'A reviewing court is entitled to have

issues clearly defined with pertinent author-

ity cited and cohesive arguments presented

[citation], and it is not a repository into

which an appellant may foist the burden of

argument and research [citation]; it is nei-
ther the function nor the obligation of this

court to act as an advocate or search the

record for error.'" People v. Williams, 385
Ill. App. 3d 359, 368, 895 N.E.2d 961, 968

(2008), quoting Obert v. Saville, 253 Ill.

App. 3d 677, 682, 624 N.E.2d 928, 931 (1993).

Points not raised in the defendant's initial brief are forfeited

and cannot be raised in the reply brief. People v. Patel, 366

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Ill. App. 3d 255, 268, 851 N.E.2d 747, 760 (2006).

In his initial brief, defendant cites the relevant

standard of review and then goes on to summarize eight cases from

the 1960s and 1970s without making an argument on the issue.

Defendant states the prior appellate court decisions would be

helpful as we "independently review" the evidence. However,

defendant has failed to develop his argument and cannot do so in

his reply brief. Thus, defendant has forfeited review of this

issue on appeal.

C. Judgment on the Count of Driving With a BAC of 0.08 or More

Defendant argues the trial court should have entered

judgment on the count of driving under the influence of alcohol

(625 ILCS 5/11-501(a)(2) (West 2006)). Defendant cites this

court's decision in People v. Kizer, 365 Ill. App. 3d 949, 962,

851 N.E.2d 266, 276 (2006), which vacated, without discussion,

the conviction for driving with a BAC of 0.08 or more and af-

firmed the conviction for driving under the influence of alcohol.

Defendant offers no argument on how the trial court erred here

or how the Kizer decision requires this court to grant his

requested relief. We find no error.

D. Prosecutorial Questions and Closing Remarks

Defendant argues he was denied a fair trial as a result

of the prosecutor's improper questioning of witnesses and closing

argument. We disagree.

"Every defendant is entitled to fair trial free from prejudicial comments by

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the prosecution." People v. Young, 347 Ill. App. 3d 909, 924, 807 N.E.2d 1125, 1137

(2004). A prosecutor can also overstep his bounds by conduct, including the improper

questioning of witnesses. Young, 347 Ill. App. 3d at 925, 807 N.E.2d at 1138.

Defendant argues Trooper Strandberg gave testimony on the HGN test in

violation of the motion in limine. During the prosecutor's questioning of Strandberg, the

following colloquy took place:

"Q. What was the first test you asked the [d]efendant

to perform?

A. The horizontal gaze nystagmus--er, the nine[-

]step[-]walk[-]and[-]turn test.

Q. The nine[-]step[-]walk[-]and[-]turn test. Can you

describe for the jury what that is?"

A violation of a ruling on a motion in limine will constitute grounds for a

mistrial "only when the violation effectively deprived the defendant of his right to a fair

trial." People v. Phillips, 383 Ill. App. 3d 521, 547, 890 N.E.2d 1058, 1081 (2008). "On

appeal, the defendant must show that the prejudicial effect on the jury resulting from the

violation of the motion in limine was so great as to constitute reversible error." People v.

Davis, 223 Ill. App. 3d 580, 592, 585 N.E.2d 214, 222 (1992). We find no reversible

error here as the prosecutor did not ask Strandberg about the HGN test and the remark

appears to have been made in passing.

Defendant also argues error occurred when Strandberg testified she "read

Miranda to him." Defense counsel objected. Again, this remark was made in passing

and not at the direction of the prosecutor. We find no error.

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 Defendant focuses most of his argument on the prosecutor's cross-

examination of Dr. Henson. During his testimony, the following colloquy took place:

"MR. LARSON [(prosecutor)]: I apologize to the

Court. All right. Have you, yourself, ever been under the

influence of alcohol, Doctor?

MR. KIRCHNER [(defense counsel)]: Objection.

THE COURT: The objection's sustained. The

question's stricken. You may proceed, Mr. Larson.

***

Q. So you have observed other people who you have

known to be under the influence of alcohol before?

A. Yes. It's [a] common tactic to use videotapes in

training. And they do such at the Police Training Institute

today.

Q. And to go along with that, have you, yourself, ever

been under the influence of alcohol?

MR. KIRCHNER: Objection. The Court's already

ruled on this.

THE COURT: The objection's sustained. It's not a

relevant inquiry, and I don't believe the inquiry would be of

any assistance to the jury in resolving the issues in the case.

And accordingly, the question's once again stricken. The

jury's instructed to disregard it. Mr. Larson, you may other-

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 wise proceed with your cross-examination."

"Generally, the prompt sustaining of an objection by a

trial judge is sufficient to cure any error in a question or

answer before the jury." People v. Alvine, 173 Ill. 2d 273, 295,

671 N.E.2d 713, 723 (1996). While questions about whether Henson

had ever been under the influence of alcohol were not relevant

here, we find the trial court cured any prejudicial impact at the

time of the objection. Moreover, the court instructed the jury

that it was to disregard testimony that was refused or stricken.

Defendant argues the prosecutor tried to discredit

Henson by asking him if it was true that "other courts in other

counties in this State have not qualified [him] as an expert in

EC/IR breath test matters." Henson stated that was untrue.

After defense counsel objected and requested a bench conference,

the prosecutor stated he had a "reference to Bridgeview Court-

house in Cook County" where Henson was disqualified as an expert

in a specified case. After further discussion, the trial court

sustained the objection, ordered the question stricken, and

instructed the jury to disregard the question. Again, any error

was cured by the court's actions. See People v. Redd, 173 Ill.

2d 1, 28-29, 670 N.E.2d 583, 597 (1996).

Defendant also complains of remarks made by the prose-

cutor during closing arguments. "A prosecutor has wide latitude

in making a closing argument and is permitted to comment on the

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evidence and any fair, reasonable inferences it yields." People

v. Glasper, 234 Ill. 2d 173, 204, 917 N.E.2d 401, 419 (2009). A

reviewing court "will find reversible error only if the defendant

demonstrates that the improper remarks were so prejudicial that

real justice was denied or that the verdict resulted from the

error." People v. Runge, 234 Ill. 2d 68, 142, 917 N.E.2d 940,

982 (2009). "Error is cured by sustaining an objection, admon-

ishments[,] and jury instructions." People v. Alksnis, 291 Ill.

App. 3d 347, 358, 682 N.E.2d 1112, 1120 (1997).

Defendant argues the prosecutor improperly commented on

defendant's decision not to testify when he said Strandberg was

"the only witness [the jury] heard from today that was actually

there" at the time of the field-sobriety tests. "A criminal

defendant has a fifth[-]amendment right not to testify as a

witness in his or her own behalf, and the prosecutor is forbidden

to make direct or indirect comment on the exercise of that

right." People v. Bannister, 232 Ill. 2d 52, 88, 902 N.E.2d 571,

593 (2008); U.S. Const., amend. V. To determine whether a

comment improperly highlights defendant's decision not to tes-

tify, courts look at "whether the reference was intended or

calculated to direct the jury's attention to the defendant's

neglect to avail himself of his legal right to testify." Bannis-

ter, 232 Ill. 2d at 88, 902 N.E.2d at 594.

In looking at the entire arguments, the prosecutor's

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statements regarding Strandberg being the only testifying witness

who observed the field-sobriety tests did not seek to direct the

jury's attention to defendant's decision not to testify.

Strandberg was the State's sole witness in its case in chief, and

Henson was the only witness for the defense. The prosecutor's

remarks sought to highlight that Strandberg was the only one who

observed defendant firsthand after the stop as Henson was not

present. We find no error.

Defendant argues the prosecutor improperly argued

defendant could "clearly hold his liquor," which explained why

there might have been a "disconnect" with his physical actions

during the stop and his blood-alcohol level. However, a prose-

cutor may comment on any inferences the evidence yields. Runge,

234 Ill. 2d at 142, 917 N.E.2d at 982. Moreover, jurors are

often instructed that they are to consider the evidence in light

of their own observations and experiences. See People v. Hopp,

209 Ill. 2d 1, 17, 805 N.E.2d 1190, 1200 (2004), citing Illinois

Pattern Jury Instructions, Criminal, No. 1.01[10] (4th ed. 2000).

The statement here was a legitimate comment on the evidence and

a matter of common knowledge such that the jurors could utilize

their experiences in life to decide whether defendant was guilty

of the offenses. We find no error.

Defendant also argues the prosecutor attacked Dr.

Henson on rebuttal by calling him a "peacock" and a "hired gun."

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Defense counsel objected to the "peacock" characterization, and

the trial court overruled the objection finding it a comment on

demeanor. We find no error. See People v. Nitz, 143 Ill. 2d 82,

120, 572 N.E.2d 895, 912 (1991) (finding it "a fair comment on

the evidence to argue that a witness is believable because of

[his] demeanor while testifying").

During his rebuttal argument, the prosecutor noted the

pay Dr. Henson received for his expert testimony and referred to

him as a "hired gun." While the prosecutor's comment was error

(see People v. Johnson, 208 Ill. 2d 53, 110, 803 N.E.2d 405, 438

(2003) (noting it was "error to refer to defense counsel as a

'hired gun'")), the trial court ordered the comment stricken and

instructed the jury that it should not be considered in arriving

at a verdict. Moreover, the court instructed the jury that

closing arguments are not evidence and arguments not based on

evidence were to be disregarded. Accordingly, the court suffi-

ciently cured the error.

Defendant sets forth other comments or questions that

were either not objected to at trial or were sustained and

stricken by the trial court. We find he was not denied a fair

trial.

E. Jury Instruction

Defendant argues the trial court erred by giving

Illinois Pattern Jury Instructions, Criminal, No. 23.30 (4th ed.

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2000) (hereinafter IPI Criminal 4th). We disagree.

The instruction at issue states, in part, as follows:

"If you find that at the time the defen-

dant drove a vehicle that the amount of alco-

hol concentration in the defendant's blood or

breath was 0.08 or more, you may presume that

the defendant was under the influence of

alcohol. You never are required to make this

presumption. It is for the jury to determine

whether the presumption should be drawn. You

should consider all of the evidence in deter-

mining whether the defendant was under the

influence of alcohol. This presumption,

however, has no application to the offense of

driving with an alcohol concentration of 0.08

or more. Therefore, you should not consider

this presumption in your deliberation on the

offense of driving with an alcohol concentra-

tion of 0.10 or more." IPI Criminal 4th No.

23.30.

Our supreme court has found the presumption did not violate a

defendant's constitutional rights as it was a permissive presump-

tion and not a mandatory one. See People v. Hester, 131 Ill. 2d

91, 101, 544 N.E.2d 797, 802 (1989).

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 The decision to give certain jury instructions rests

with the trial court, and that decision will not be reversed on

appeal absent an abuse of that discretion. People v. Lovejoy,

235 Ill. 2d 97, 150, 919 N.E.2d 843, 872 (2009). Defendant

argues the trial court should not have given the instruction at

issue here or, if it did, the jury should have been instructed

that it was required to find "beyond a reasonable doubt" that

defendant's BAC was 0.08 or more before it presumed he was under

the influence of alcohol.

We find the instructions given to the jury, taken as a

whole, properly instructed the jury on the State's burden of

proof. The instruction on driving under the influence required

the State to prove defendant was under the influence beyond a

reasonable doubt. Thus, defendant has not shown the trial court

erred in giving the permissive-presumption instruction.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $75

statutory assessment against defendant as costs of this appeal.

Affirmed.

MYERSCOUGH, P.J., and KNECHT, J., concur.

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