People v. Dismuke

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Appellate Court Date: 2017.08.07
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People v. Dismuke, 2017 IL App (2d) 141203

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ANTWON L. DISMUKE, Defendant-Appellant.

District & No. Second District
Docket No. 2-14-1203

Filed June 9, 2017

Decision Under Appeal from the Circuit Court of Kane County, No. 11-CF-262; the
Review Hon. Susan Clancy Boles, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Michael J. Pelletier, Thomas A. Lilien, and Sherry R. Silvern, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.

Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick
Delfino, Lawrence M. Bauer, and Mary Beth Burns, of State’s
Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justice McLaren concurred in the judgment and opinion.
Justice Burke specially concurred, with opinion.
 OPINION

¶1 Defendant, Antwon L. Dismuke, appeals from his conviction of being an armed habitual
criminal (720 ILCS 5/24-1.7(a)(1) (West 2010)), following a jury trial in the circuit court of
Kane County. For the reasons that follow, we reverse and remand for a new trial.

¶2 I. BACKGROUND
¶3 The following facts are those necessary for an understanding of the case. We will discuss
additional facts as required in the Analysis section of this opinion.

¶4 A. Pre-Indictment
¶5 1. The July 13, 2009, Shooting
¶6 In the early morning hours of July 14, 2009, David Adams, an evidence technician with the
Aurora police department, was dispatched to the scene of a vehicle struck by gunfire on July
13, 2009. When he arrived, he saw two orange cones marking the locations of bullet fragments
in the roadway on Kane Street. Inside an area taped off with crime scene tape, Adams observed
an unoccupied silver Isuzu Ascender. Adams learned from the patrol officers that this was the
vehicle that was struck by gunfire. The vehicle had been occupied by three undercover police
officers when it was fired upon.
¶7 Adams’s examination of the exterior of the Isuzu revealed that one bullet struck the
driver’s-side rear door and another bullet struck the driver’s-side fender above the rear wheel.
There was also damage from a bullet striking the rear hatch door. The SUV’s interior exhibited
a bullet hole in the rear door that corresponded to the bullet hole on the outside of the door. A
white backpack lay on the rear seat. Adams found a bullet fragment on top of it. He collected
all three bullet fragments as evidence, but he submitted only the two found in the roadway for
examination by the Illinois State Police Crime Laboratory, because the bullet fragment on the
backpack was too deformed for examination.

¶8 2. The Search Warrant
¶9 On November 19, 2009, the police searched defendant’s home in Aurora pursuant to a
warrant. They did not find the gun that was used in the July shooting.

¶ 10 3. Derrick Smith
¶ 11 Derrick Smith was arrested in Du Page County in January 2010. He gave the Aurora police
information regarding the shooting of July 13, 2009, hoping for leniency in exchange for his
information. According to Smith, he was at defendant’s home in Aurora in July 2009, the
morning after the shooting. He was in the kitchen with defendant and Silas Strickland.
Strickland received a call, and then he looked up something on the Internet. Strickland
divulged that he had shot at a vehicle, thinking that it contained rival gang members. Strickland
gave defendant a .44 Magnum, a black long-barrel revolver with a brown grip, and instructed
him to get rid of it. Defendant took possession of the revolver.
¶ 12 Derrick Smith told the police that he was again with defendant and Strickland around
Thanksgiving or Christmas 2009, when defendant told Strickland that he had not disposed of
the revolver. Defendant stated that the police did not find the revolver when they “raided” his

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 house. Strickland again instructed defendant to dispose of it.

¶ 13 4. June 30, 2010
¶ 14 Defendant and his next-door neighbor, Ismail Quintana, shared a common driveway.
Quintana’s building was a former single-family residence that he used as a real estate office.
On the morning of June 30, 2010, as Quintana walked to the front entrance of his building, he
noticed a piece of wood in the driveway next to his back stairs that was not there the evening
before. Wooden lattice work surrounding the stairs was broken. When Quintana stooped to
look at the damage, he saw a black plastic garbage bag stuffed under the stairs. He poked it
with a stick and felt the outline of a gun. He called the police.
¶ 15 The police seized the garbage bag. Inside was a blue towel wrapped around a .44 Magnum,
a black long-barrel revolver with a brown grip. Forensic analysis proved that this gun was used
in the shooting of the Isuzu.

¶ 16 B. The Indictment
¶ 17 On April 20, 2011, the Kane County grand jury charged defendant in a three-count
indictment. Count I alleged that “on or about” June 30, 2010, defendant committed the offense
of being an armed habitual criminal in that he knowingly possessed a firearm “after having
been convicted two or more times of the offenses of manufacture/delivery of a controlled
substance [in] Macon County, manufacture/delivery of a controlled substance [in] Kane
County, and aggravated discharge of a firearm [in] Kane County.” Count II alleged that “on or
about” June 30, 2010, defendant committed the offense of unlawful possession of a firearm by
a felon (720 ILCS 5/24-1.1(b) (West 2010)), and count III alleged that “on or about” June 30,
2010, defendant committed the offense of unlawful possession of a weapon without a firearm
owner’s identification card (430 ILCS 65/2 (West 2010)). Prior to trial, the State dismissed
counts II and III. On April 29, 2014, the State filed an amended charge of being an armed
habitual criminal, alleging that defendant had previously been convicted of delivery of a
controlled substance, a Class 2 felony, and aggravated discharge of a firearm, a Class 1 felony.
Defendant did not contest the previous convictions at trial.

¶ 18 C. Defense Motion in Limine No. 7
¶ 19 Prior to trial, defendant filed a series of motions in limine. At issue in this appeal is No. 7,
pertaining to the introduction of evidence of the shooting. Defendant maintained that the
shooting was irrelevant to whether he possessed the revolver. The court ruled that the fact of
the shooting was relevant to show that the gun defendant allegedly possessed was the one
Strickland gave him after the shooting. However, the court ruled that the details of the shooting
were irrelevant and prejudicial: “To get into any details that involved officers and all that ***
the prejudice of that would outweigh the probative value.” (Emphasis added.)

¶ 20 D. Trial
¶ 21 At the beginning of voir dire, the court admonished the venire as to “certain principles of
law that apply to all criminal cases.” Defendant refers to these principles as “the four basic
principles of law”: (1) the presumption of innocence; (2) the State has the burden of proof;
(3) the defendant is not required to offer evidence on his own behalf; and (4) the defendant’s

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 failure to testify cannot be used against him. See Ill. S. Ct. R. 431(b) (eff. July 1, 2012)
(codifying People v. Zehr, 103 Ill. 2d 472 (1984)). We refer to these principles as the “Zehr
principles.”
¶ 22 The court instructed the entire venire to raise hands if the potential jurors did not
“understand or accept these principles or don’t agree with them.” Just prior to that instruction,
the court had instructed the venirepersons not to raise their hands if they did understand, agree
with, and accept the principles. The court then recited each principle followed by a different
question: “Is there anyone who has any difficulty or disagreement with this proposition of
law?” (Emphasis added.) The court instructed the venirepersons to raise their hands if they did.
No hands were raised. Defense counsel did not object to the court’s handling of the Zehr
principles. The court then seated 12 potential jurors in the jury box, and the attorneys
commenced their questioning.
¶ 23 After 12 jurors had been chosen and sent from the courtroom, the bailiff ushered in another
group from whom 2 alternates would be chosen. This group was not present for the court’s
earlier admonishments as to the Zehr principles. Following the attorneys’ acceptance of two
alternate jurors, the court for the first time told the alternates that it would explain the Zehr
principles. The court further explained that not raising their hands signified that they
understood and accepted those principles. The court stated that, if they raised their hands, it
would signify that they did not accept or understand the principles or did not agree with them.
The court recited the Zehr principles and inquired after each recitation whether either of the
alternate jurors had “any difficulty or disagreement” with the stated principle. Neither raised a
hand. The court then had the entire jury, including the two alternates, sworn. On the second day
of trial, one of the alternate jurors replaced a juror who was excused for illness.
¶ 24 In its opening statement, the State made clear its theory that defendant continuously
possessed the gun from July 2009, when Strickland handed it to him, to June 30, 2010, when
Quintana found it.
¶ 25 Quintana testified as recounted above. Additionally, he testified that people congregated at
defendant’s home and left garbage, like beer packages, in the common driveway. According to
Quintana, defendant was present at his own house only a couple of times a week. Quintana saw
garbage bags like the one holding the revolver strewn about every day. Typically, Quintana
cleaned up the mess, but he did not do so on the evening of June 29, 2010. Nor did he notice
anything out of the ordinary when he left his real estate office that evening.
¶ 26 On June 30, 2010, Aurora police officer Michael Carrasco and his partner responded to
Quintana’s call, which reported his finding a gun under his back steps. Carrasco called in
evidence technicians, and Officer Armando Montemayor responded to the scene. Montemayor
examined the plastic bag containing the revolver for DNA and fingerprints. He observed a
partial fingerprint on it, placed the fingerprint on a lift card, and turned it over to the police
department’s latent fingerprint examiners. Later, laboratory analysis determined that there was
insufficient DNA on the gun to warrant further testing. Montemayor also observed hairs on the
blue towel in which the gun was wrapped. He submitted the hairs to the Illinois State Police
Crime Laboratory for analysis. Montemayor testified that he found no fingerprints on the gun
or the bullets inside the chamber.
¶ 27 Robert Berk of the Illinois State Police crime laboratory testified that the hairs found on the
towel were “human Negroid hairs,” possibly from three different people, and that it was not
possible to conduct DNA analysis on them.

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¶ 28 When the State announced that it would call Adams to testify, defendant renewed his
objection to the admission of any evidence concerning the shooting. Over defendant’s
objection, Adams was allowed to testify to details of the crime scene. Additionally, the State
introduced 12 color photographs to illustrate Adams’s testimony. Those photographs depicted
the exterior bullet holes in the vehicle, the interior bullet hole in the rear passenger door, a
close-up of the bullet fragment on the backpack in the backseat, and close-ups of the bullet
fragments on the pavement.
¶ 29 The State next introduced a fingerprint card depicting defendant’s fingerprints, taken at the
Kane County jail on November 19, 2009.
¶ 30 Julie Smith, an independent fingerprint examiner, testified that she compared defendant’s
known fingerprints from the card taken at the Kane County jail to the partial print on the plastic
garbage bag in which the revolver was found. She concluded that the print on the garbage bag
was a partial left thumb print that matched defendant’s. She revealed that the last step in her
analysis, before she could submit her report, was to have another examiner verify her results.
The State asked Smith who verified the results, and defendant objected without stating a basis.
The court overruled the objection, and Smith testified that Gina Mineti verified her results.
¶ 31 Derrick Smith testified as narrated above, except that he was precluded from testifying that
Strickland told defendant that he (Strickland) used the gun to shoot at a vehicle. Instead, Smith
testified that he was aware of a shooting and was present in defendant’s kitchen the next
morning when Strickland gave a .44 Magnum revolver to defendant with instructions to get rid
of it. Additionally, Smith acknowledged seeking favors in exchange for his testimony.
According to Smith, the prosecutors told him that, if he testified truthfully, they would write a
letter recommending that he receive credits, work release, or home monitoring. The State also
gave Smith a written “proffer contract,” promising him immunity from prosecution related to
any statements he made to authorities concerning the July 13, 2009, shooting, if, in the
authorities’ opinion, his statements were truthful. On direct examination, Smith testified that
Strickland was in defendant’s kitchen when he took the revolver from his waistband and
handed it to defendant. On cross-examination, he acknowledged that earlier he had stated that
Strickland picked the gun up from a table and gave it to defendant.
¶ 32 Aurora police officer Steve Stemmet testified to executing the search warrant for
defendant’s home on November 19, 2009. On direct examination, the prosecutor directed
Stemmet not to say whether anything was found during the search; rather, the prosecutor
specifically asked if a revolver like that recovered from under Quintana’s stairs was found in
the search. Stemmet answered “No.” Stemmet testified that when defendant was taken into
custody the night of the search, on unrelated charges, he waived his rights on a written form
and agreed to speak with the police. Defendant denied any knowledge of the shooting on July
13, 2009. Stemmet testified that he and Detective Sergeant Wallers of the Aurora police spoke
with defendant again on October 18, 2010. Defendant again waived his rights on a written
form. Stemmet asked defendant if he knew that he could not “touch, hold or possess any
firearms because he was a convicted felon,” and defendant replied that he was aware of that.
¶ 33 On cross-examination, defense counsel established that, when executing a search warrant,
the police open cupboards and drawers and look in areas where things could be hidden. On
redirect examination, the prosecutor asked Stemmet: “You, in fact, did look into drawers
during [the search of defendant’s home], correct?” Stemmet answered: “Yes.” The prosecutor
asked: “Was cannabis found in those drawers?” Stemmet answered: “Yes, sir.” The prosecutor

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 then asked: “And a gun was found underneath a couch, correct?” Stemmet answered: “Yes,
sir.” The prosecutor then clarified in a leading question that it was a “different type of gun”
than the revolver found by Quintana.
¶ 34 Wallers testified that he was the lead detective investigating the July 13, 2009, shooting.
He also testified that the vehicle was occupied by three people. He testified that, after speaking
with Derrick Smith, the police considered defendant a suspect in the shooting. Wallers
interviewed defendant on January 21, 2010, and defendant denied knowledge of the July 13,
2009, shooting or the gun that was used in that shooting. Wallers and Stemmet spoke with
defendant again on October 18, 2010. Wallers testified that defendant told them that he had
information about the shooting but demanded to speak with an assistant State’s Attorney
before he said anything. When Wallers refused to summon a prosecutor, defendant indicated
that he was willing to talk anyway. Defendant stated that, around midnight on July 13, 2009, he
was walking a lady through his kitchen when he heard someone say, “Be careful out there, we
just shot at some Kings around the corner.” Defendant also stated that, a couple of days later,
he went to a Marathon gas station near his house and talked to Smith. According to defendant,
Smith tried to sell him some guns, including a .44 Magnum. Defendant told Wallers that Smith
said that he was not trying to sell the gun used in the shooting and that he had thrown that gun
in the river. According to defendant, Smith later said that he had buried that gun. Wallers then
testified that he went to the Kane County jail on February 11, 2011, to speak with defendant on
an unrelated case. When defendant would not speak with him, Wallers left a warrant with the
jail staff. Wallers further testified that he showed Smith a photo of the revolver Quintana found
and that Smith identified it as the revolver Strickland gave to defendant. Then the State rested.
¶ 35 The court denied defendant’s motion for a directed verdict, and defendant presented one
witness. Tracy Newcomer, an investigator for the Kane County public defender’s office,
testified that she interviewed Derrick Smith on August 12, 2013. Smith told Newcomer that he
did not remember having a conversation with Strickland and defendant in November or
December 2009, and he doubted that he told the police that such a conversation took place.
¶ 36 During its deliberation, the jury asked for a transcript of Derrick Smith’s testimony. The
court allowed the request, but informed the jury that it would take up to two hours to have the
transcript ready. The record does not reflect whether the transcript was delivered to the jury.
The jury found defendant guilty.

¶ 37 E. Posttrial Motions
¶ 38 The Kane County public defender filed a timely posttrial motion. The motion alleged,
inter alia, that (1) the State failed to prove defendant guilty beyond a reasonable doubt, (2) the
court erred in admitting evidence of the July 13, 2009, shooting, and (3) the court erred in
admitting testimony relating to the execution of the search warrant at defendant’s home.
Defendant discharged the public defender and hired private counsel, who filed an amended
posttrial motion. Pertinent to this appeal, the amended posttrial motion alleged that it was error
to allow Julie Smith to testify to the fingerprint examination because (1) she conducted it on
behalf of the Aurora police department, which was biased, and (2) her testimony was
unbelievable because she was unclear as to the date of the fingerprint card she used for
comparison. On October 9, 2014, the court denied the amended posttrial motion. Defendant
was sentenced to 13 years’ imprisonment. He filed a timely notice of appeal.

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¶ 39 II. ANALYSIS
¶ 40 Defendant contends that (1) he was not proved guilty beyond a reasonable doubt, (2) the
court erred in admitting evidence of other crimes, (3) fingerprint analyst Julie Smith should not
have been allowed to testify to hearsay, and (4) the court failed to comply with Illinois
Supreme Court Rule 431(b) during voir dire. Because we agree that defendant is entitled to a
new trial, we will address his reasonable-doubt argument to determine whether retrial is
appropriate.
¶ 41 First, defendant contends that proof of his possession of the revolver, on any date, depends
upon the unreliable and uncorroborated testimony of Derrick Smith. Defendant also argues
that the State failed to prove that he either actually or constructively possessed the revolver on
June 30, 2010.
¶ 42 When a defendant challenges the sufficiency of the evidence, our inquiry is limited to
whether, after viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Cox, 195 Ill. 2d 378, 387 (2001). It is
not our function to retry a defendant. People v. Clinton, 397 Ill. App. 3d 215, 220 (2010).
Rather, it is the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from the evidence. Clinton, 397 Ill. App. 3d at
220. Most particularly, it is the function of the jury to evaluate the credibility of witnesses.
People v. Willett, 2015 IL App (4th) 130702, ¶ 90.
¶ 43 Section 24-1.7(a) of the Criminal Code of 1961 provides that a person commits the offense
of being an armed habitual criminal if he or she “receives, sells, possesses, or transfers” any
firearm after having been convicted a total of two or more times of any combination of certain
listed offenses. Here, the State introduced defendant’s prior convictions of unlawful delivery
of a controlled substance (720 ILCS 570/401(d) (West 2000)) and aggravated discharge of a
firearm (720 ILCS 5/24-1.2(a)(2) (West 1996)). Defendant does not contest that those
convictions satisfied the statutory elements. Defendant also does not contest that the revolver
was a firearm. The only issue is whether the State proved beyond a reasonable doubt that
defendant received and possessed the revolver.
¶ 44 Possession can be established by evidence of actual possession or constructive possession.
People v. Scott, 152 Ill. App. 3d 868, 871 (1987). Actual possession is proved by testimony
showing that the defendant exercised dominion over the contraband. Scott, 152 Ill. App. 3d at
871. Constructive possession exists without actual personal present dominion but with the
intent and capability to maintain control and dominion over the contraband. Scott, 152 Ill. App.
3d at 871. Mere access by other persons to the area where the contraband is found does not
defeat constructive possession. Scott, 152 Ill. App. 3d at 871. Actual possession and
constructive possession are two distinct theories under which a defendant may be proved guilty
of the crime of possession. People v. Dismuke, 2013 IL App (2d) 120925, ¶ 16.
¶ 45 Defendant isolates two instances and challenges the sufficiency of the proof as to each
instance. The first instance was in July 2009, when Strickland gave defendant the revolver and
told him to get rid of it. The second instance was the June 30, 2010, discovery of the revolver
under Quintana’s stairs. Derrick Smith testified that he was present in defendant’s kitchen
when Strickland got a phone call, checked something on the Internet, and then gave the
revolver to defendant with instructions to get rid of it. Defendant emphasizes that proof of this
incident depends entirely on Smith’s credibility.

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¶ 46 Derrick Smith was a convicted felon, who was facing prison time. He gave the police the
information because he admittedly wanted leniency. He obtained the prosecutors’ conditional
promise to write a letter urging that he be given consideration. The State also gave Smith
conditional immunity from prosecution for anything he told prosecutors about the shooting.
Defendant argues that it is possible that Smith was involved in the shooting. Defendant told
Wallers that Smith admitted that he either threw the gun in the river or buried it. Further,
defendant maintains that Smith was impeached when he testified that Strickland got the gun
from his waistband but had earlier stated to authorities that Strickland picked the gun up from a
table. Finally, defendant maintains that Smith was impeached with his statement to Newcomer
in which he denied being present when defendant told Strickland that the police did not find the
revolver when they executed the search warrant.
¶ 47 With respect to the discovery of the revolver on June 30, 2010, defendant argues that (1) he
was not present, (2) others had access to the area where the revolver was found, and
(3) defendant’s partial thumb print on the plastic bag containing the gun must be disregarded
because Julie Smith’s testimony concerning the identification of the thumb print was hearsay.
¶ 48 The inconsistency in Derrick Smith’s testimony about whether Strickland got the revolver
from his waistband or a table is trifling. According to Smith, defendant told Strickland that the
police did not find the revolver when they searched his house. The testimony that the police
executed a search warrant on defendant’s property at about the time of this conversation
corroborated Smith’s testimony. The bullet fragments recovered by Adams at the scene of the
shooting were matched to the revolver and tended to corroborate Smith’s testimony that he was
present the morning after the shooting when Strickland gave the revolver to defendant with
orders to get rid of it. Smith testified that he did not want to talk to defendant’s attorney or to
Newcomer, which may explain why he denied the November or December conversation and
told Newcomer that he did not tell the police about defendant’s admission. Testimony can be
found insufficient under the Jackson standard only where the record compels the conclusion
that no reasonable person could accept the evidence beyond a reasonable doubt. People v.
Cunningham, 212 Ill. 2d 274, 280 (2004). We do not conclude that Smith’s testimony was so
lacking in credibility that no rational juror could accept it. Consequently, the State proved
beyond a reasonable doubt that defendant possessed the revolver in July 2009.
¶ 49 If the June 30, 2010, incident is viewed on a continuum, rather than in isolation, it is
circumstantial evidence that defendant moved the revolver after having possessed it
continuously since July 2009. Assuming, without deciding, that the partial thumb print on the
plastic bag was admissible, the print was probative, but not dispositive, of defendant’s
continuous possession. The thumb print could have been placed there at any time and did not
definitively prove that defendant left it on the bag when the gun and towel were placed into the
bag. The evidence showed that similar plastic garbage bags were routinely left on defendant’s
property. Nevertheless, assuming, without deciding, the inadmissibility of the partial thumb
print, the proximity of the revolver to defendant’s house, coupled with defendant’s statement
to Strickland that the police did not find it when they searched his house in November 2009,
was sufficient circumstantial evidence of defendant’s continuous possession. Accordingly, we
conclude that defendant was proved guilty of being an armed habitual criminal beyond a
reasonable doubt and that defendant will not be exposed to double jeopardy upon retrial. See
People v. Macon, 396 Ill. App. 3d 451, 458 (2009) (to prevent risk of exposure to double

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 jeopardy after reversal for error, court will consider whether the State presented sufficient
evidence to prove the defendant guilty beyond a reasonable doubt).
¶ 50 We next consider defendant’s argument that the court’s failure to comply with Rule 431(b)
during voir dire requires a new trial. Rule 431(b) mandates trial courts to admonish and
question each potential juror on the Zehr principles. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). The
rule provides that the court “shall ask” each juror, either individually or in a group, whether he
or she “understands and accepts” the Zehr principles. Ill. S. Ct. R. 431(b) (eff. July 1, 2012). In
People v. Thompson, 238 Ill. 2d 598, 607 (2010), our supreme court made clear that the court
must ask both whether the jurors understand and accept the principles.
¶ 51 Here, at the beginning of voir dire, the court admonished the entire venire as to the Zehr
principles and instructed the potential jurors not to raise their hands “if [they] understand the
principles, agree with those principles[,] and accept those principles.” Then the court
instructed the venirepersons to raise their hands if they did not “understand or accept these
principles or don’t agree with them.” The court recited each principle and then asked the
potential jurors whether they had any “difficulty” or disagreement” with the principle. After
the parties accepted 12 jurors, the court brought 5 potential alternates, who were not present for
the previous voir dire, into the courtroom. Following selection of two alternates, the court
informed them that it would explain certain principles. The court instructed the alternates not
to raise their hands if they understood, agreed with, and accepted those principles. The court
then recited each of the Zehr principles, asking after each principle whether the alternates had
any “difficulty or disagreement” with the proposition. Neither one did. The 12 jurors were
brought back into the courtroom, and all 14 jurors were sworn. One of the alternates was
substituted for a juror who was dismissed due to illness.
¶ 52 Defendant raises two issues: (1) the court did not inquire whether each juror understood the
Zehr principles, and (2) the court instructed the alternates as to the Zehr principles only after
they had been chosen. In People v. Wilmington, 2013 IL 112938, ¶ 32, our supreme court
opined that it is arguable that the court’s asking for disagreement, and getting none, is
equivalent to juror acceptance of the principles. The court also opined that the failure to ask
jurors if they understand the principles “is error in and of itself.” Wilmington, 2013 IL 112938,
¶ 32.
¶ 53 Rule 431(b) mandates “a specific question and response process.” Thompson, 238 Ill. 2d at
607. The court “shall ask” whether the potential jurors understand and accept the enumerated
principles. Thompson, 238 Ill. 2d at 607. Asking if they had any “difficulty or disagreement”
was not equivalent to asking if they understood. For example, someone might not disagree
with a statement simply because he or she does not understand it.
¶ 54 The inclusion of the court’s entire colloquy with the venire by Justice Burke in his special
concurrence demonstrates how unclear and inadequate the court’s instructions were. First, the
court instructed the potential jurors not to raise their hands if they understood, agreed with, and
accepted the Zehr principles. Second, the court instructed the potential jurors to raise their
hands in response to its question if they did not understand or accept the principles. Third, after
reciting each principle, the court changed the question from “understand and accept” to
“difficulty or disagreement.” Thus, the potential jurors received three different instructions
about what they were supposed to do with their hands. More problematic was the court’s
substitution of “difficulty or disagreement” for “understand and accept.”

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¶ 55 While Justice Burke contends that the word “difficulty” meant whether a potential juror
had difficulty understanding or accepting the principle, there is no reason to reach this
conclusion from the language that the court actually used. The court asked whether the
potential jurors had any “difficulty or disagreement” with each principle. “Difficulty” is
defined as “the quality or state of being difficult, or hard to do or to overcome” or a
“disagreement” or “controversy.” Webster’s Third New International Dictionary 630 (1993).
“Difficulty” is not, therefore, synonymous with “understanding.” The court never repeated, or
even alluded to, the word “understand” in its questioning after the recitation of each principle.
In sum, by using this confusing multi-task exercise, the court’s method of inquiry failed to
determine whether the potential jurors understood the principles. Rather than make the
procedure so convoluted, it was necessary only to recite the principles and ask the potential
jurors one question: whether they understood and accepted the principles. Accordingly, we
hold that the court violated Rule 431(b).
¶ 56 We disagree with defendant that the court further violated the rule when it questioned the
alternate jurors as to the Zehr principles only after they had been chosen. The appellate court
specifically sanctioned that procedure in People v. Willhite, 399 Ill. App. 3d 1191, 1197
(2010), and People v. Staple, 402 Ill. App. 3d 1098, 1106 (2010). In Willhite, the court noted
that the rule does not state a specific time when the court must question venirepersons either
individually or in groups. Willhite, 399 Ill. App. 3d at 1197. The court approved of questioning
after the prospective jurors had been chosen but before they were sworn, reasoning that the
trial judge would be able to inquire further and remove any biased juror, if necessary. Willhite,
399 Ill. App. 3d at 1197. In Willhite, the court also approved of the trial court’s method of
inquiry, which gave each juror the opportunity to respond audibly to the judge’s questions.
Willhite, 399 Ill. App. 3d at 1196. Similarly, in Staple, the trial court gave the jurors the
principles and received audible responses. Staple, 402 Ill. App. 3d at 1101-02.
¶ 57 The next question is whether the error requires reversal and remand for a new trial pursuant
to plain-error review. It is undisputed that defendant did not preserve the error by objecting to
the procedure at voir dire or in his posttrial motion. The plain-error doctrine allows a
reviewing court to consider unpreserved error when a clear or obvious error occurred and
(1) the evidence is so closely balanced that the error alone threatened to tip the scales of justice
against the defendant, regardless of the seriousness of the error, or (2) the error was so serious
that it affected the fairness of the defendant’s trial and challenged the integrity of the judicial
process. People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). In Thompson, our supreme court
held that a violation of Rule 431(b) is not cognizable under the second prong of the plain-error
doctrine. Thompson, 238 Ill. 2d at 611. Consequently, defendant argues that the evidence in the
present case is so closely balanced that reversal of his conviction is required.
¶ 58 Whether the evidence is closely balanced is a separate question from whether the evidence
is sufficient to sustain a conviction against a reasonable-doubt challenge. Piatkowski, 225 Ill.
2d at 566. In determining whether the evidence is closely balanced, we view the evidence in a
commonsense manner in the context of the totality of the circumstances. People v. Belknap,
2014 IL 117094, ¶ 62. On June 30, 2010, Quintana found the revolver hidden under his stairs,
within feet of defendant’s property. The revolver was the same gun that Strickland gave to
defendant. Defendant referred to the revolver when he told Strickland that the police did not
find it when they searched his house in November 2009. Thus, a reasonable inference is that
defendant moved the revolver from his house to the hiding place under Quintana’s stairs,

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 where he could maintain dominion and control over it. Additionally, defendant lied to Wallers
about not knowing anything about the shooting or the revolver. In defendant’s second
interview with Wallers, he stated that Derrick Smith told him that he threw the revolver in the
river or buried it.
¶ 59 Only the execution of a search warrant at defendant’s house in November 2009 (where the
police did not find the revolver) and the bullet fragments tended to corroborate Derrick Smith’s
testimony. Strickland did not testify.1 The fingerprint on the garbage bag did not prove that it
was placed there when the revolver was put into the bag. Similar garbage bags were routinely
strewn about defendant’s property. The towel did not contain evidence that defendant handled
it. The revolver and the bullets in the chamber did not contain any fingerprints or DNA. People
were constantly congregating at defendant’s house, including Smith, who testified that he was
there “often.”
¶ 60 Defendant’s statement to Wallers puts Derrick Smith in possession of the revolver, leading
to the inference that Smith was involved in the shooting. Smith was a convicted felon who
sought leniency in exchange for telling the police about the revolver. The prosecutors gave
Derrick Smith a proffer of immunity and agreed to write a letter recommending that he receive
work release or home monitoring. Under the totality of the circumstances, we believe that the
evidence is closely balanced. Accordingly, the court’s failure to comply with Rule 431(b)
requires reversal and a new trial.
¶ 61 Defendant asserts numerous other errors. We will address those contentions because the
cumulative errors also require a new trial and because those issues are likely to recur on retrial.
Defendant argues that he was prejudiced when the State introduced evidence of other crimes.
Specifically, defendant complains that the court allowed evidence of the shooting, the recovery
of cannabis and a gun during the November 2009 search of defendant’s property, and
defendant’s incarceration on unrelated charges. Because the shooting was not other-crimes
evidence, we will analyze that issue separately.
¶ 62 The court allowed the State to show that the shooting occurred, but it ruled that details of
the shooting, particularly that police officers were occupants of the vehicle being shot at, were
not admissible. The parties analyze this issue in terms of other-crimes evidence, but the State
did not introduce details of the shooting for any purpose applicable to that theory. Other-crimes
evidence is admissible to show the defendant’s modus operandi, intent, identity, motive, or
absence of mistake. People v. Wilson, 214 Ill. 2d 127, 136 (2005). Other-crimes evidence may
also be admitted to show, by similar acts or incidents, that the act in question was not done
inadvertently, accidentally, involuntarily, or without guilty knowledge. Wilson, 214 Ill. 2d at
136. In a motion in limine, the State argued that the shooting was admissible to show
knowledge, ownership, possession, identification, intent, motive, and absence of mistake.
However, by its nature, other-crimes evidence means other crimes committed by the
defendant. In our case, the State did not show that defendant was involved in the shooting, and
the court explicitly found that defendant was not a co-conspirator in the shooting. Furthermore,
the shooting was not in any way similar to the crime for which defendant was being tried.
¶ 63 The more accurate analysis is whether the shooting was relevant to prove any fact of
consequence. Relevant evidence is that having any tendency to make the existence of any fact
of consequence more or less probable than it would be without the evidence. Smith v. Silver

1
The record shows that Strickland was likely dead at the time of trial.

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 Cross Hospital, 339 Ill. App. 3d 67, 73-74 (2003). All evidence must be relevant to be
admissible. Smith, 339 Ill. App. 3d at 74. Determining relevance and admitting evidence are
matters within the discretion of the trial court, and its ruling will not be reversed absent a clear
abuse of discretion. Smith, 339 Ill. App. 3d at 74. Also, defendant moved in limine to bar
evidence of the shooting, and he renewed the motion prior to Adams’s testimony. A trial court
has discretion whether to grant a motion in limine, and we will not reverse its ruling unless the
court clearly abused its discretion. People v. Hogan, 388 Ill. App. 3d 885, 890 (2009).
¶ 64 The offense of being an armed habitual criminal has three elements: (1) the defendant
receives, sells, possesses, or transfers (2) any firearm (3) after having been convicted a total of
two or more times of a combination of any of the listed offenses. 720 ILCS 5/24-1.7(a) (West
2010). As noted above, defendant concedes elements 2 and 3. Therefore, defendant’s receipt
and possession of the revolver were the facts “of consequence.” The trial court ruled that
defendant and Strickland were not co-conspirators in the shooting but that they were
co-conspirators in the concealment of the revolver that was used in the shooting. Defendant
does not challenge that finding. Thus, the fact of the shooting is relevant to show that the
revolver hidden under Quintana’s stairs was the revolver that was used in the shooting. That
the revolver was used in the shooting is relevant to corroborate Derrick Smith’s testimony that
he was present the next morning when Strickland gave defendant the gun and told him to get
rid of it. However, we agree with defendant that the details of the shooting are irrelevant and
prejudicial.2
¶ 65 On appeal, the State argues that details of the shooting were necessary to show the
“continuing narrative.” The “continuing narrative” is a component of the other-crimes
doctrine. People v. Carter, 362 Ill. App. 3d 1180, 1189-90 (2006). When facts concerning
uncharged criminal conduct are all part of a continuing narrative concerning the circumstances
of the entire transaction, those facts do not concern separate, distinct, and unconnected crimes.
Carter, 362 Ill. App. 3d at 1190. As the court explained in Carter, the “continuing narrative”
may be necessary for the jury to understand the evidence. Carter, 362 Ill. App. 3d at 1190. As
noted above, however, the details of the shooting did not constitute other-crimes evidence,
because defendant was not involved in the shooting. The court specifically ruled against the
State’s position that defendant and Strickland were co-conspirators in the shooting. Therefore,
the continuing-narrative exception is inapplicable. Moreover, Derrick Smith’s testimony was
fully comprehensible without the details of the shooting.
¶ 66 On retrial, Adams’s testimony should be limited to: (1) shots were fired at a vehicle on July
13, 2009; (2) on July 14, 2009, Adams recovered three bullet fragments from the
scene—leaving out that the third bullet struck the backpack—and two bullet fragments were
suitable for comparison; and (3) Adams submitted two of the bullet fragments to the crime
laboratory. The photographs and verbal descriptions of the scene are not admissible. On retrial,
Wallers will not be permitted to testify that there were three occupants of the vehicle and that
he developed defendant as a suspect in the shooting. Wallers may not testify that defendant
asked for an assistant State’s Attorney or otherwise insinuate that defendant desired to make a
deal, supposedly about his involvement in the shooting. Also, Wallers may testify that
defendant initially denied knowledge of the revolver but not that he denied knowledge of the
shooting. Wallers may not testify to the details of defendant’s second statement, in which he

2
The State does not argue that the improper admission of evidence was harmless error.

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 related to Wallers that a person said that they had shot at some Kings. Additionally, the State
may not characterize the shooting as a “drive-by.”
¶ 67 The evidence that defendant possessed cannabis and another gun and that he was
incarcerated on unrelated crimes is other-crimes evidence. Evidence of other crimes is
admissible if it is relevant for any purpose other than to show the defendant’s propensity to
commit crimes. Wilson, 214 Ill. 2d at 135. The admissibility of other-crimes evidence rests
within the trial court’s discretion, and its decision will not be disturbed absent an abuse of
discretion. Wilson, 214 Ill. 2d at 135.
¶ 68 In a pretrial hearing, the State acknowledged that the other gun that the police found when
executing the search warrant at defendant’s house was not admissible. Nevertheless, the
State’s redirect examination of Stemmet consisted of a series of leading questions in which the
State elicited that the police found cannabis and a gun. The State intimates, without explicitly
arguing, that defense counsel opened the door to this evidence. In her cross-examination,
defense counsel inquired whether the police search in cupboards and in hidden areas when
executing a search warrant. Her point was that such a thorough search did not yield the
revolver. We do not believe that the cross-examination opened the door to what the police
actually found. Evidence that they found another gun was highly prejudicial because of
Stemmet’s testimony that defendant admitted that he knew that he, as a convicted felon, could
not possess a gun. The jury could have concluded that defendant’s possession of the gun found
during the search was sufficient to convict. The testimony that the police found cannabis was
not related to the issue of defendant’s possession of the revolver, and it was introduced solely
as propensity evidence. Upon retrial, testimony about the discovery of the gun and the
cannabis will not be admissible.
¶ 69 The State also introduced evidence of defendant’s incarceration in the Kane County jail for
crimes unrelated to the instant offense. Specifically, Shari Clark, a booking officer at the jail,
testified to the jail’s booking and fingerprinting procedures. She also testified that she
fingerprinted defendant on November 19, 2009. Ryan Salisbury, a Kane County corrections
officer, testified that he tried to take defendant to “intake” on February 11, 2011, but that
defendant refused to go. Wallers testified that he attempted to talk to defendant at the Kane
County jail on February 11, 2011, on an unrelated case but that defendant would not speak with
him, so Wallers left a warrant with the jail staff.
¶ 70 Clark’s testimony was admissible to lay the foundation for the fingerprint examiner’s
testimony. Ostensibly, Salisbury’s testimony corroborated Wallers’s testimony that defendant
refused to talk to Wallers on February 11, 2011. However, the February 11, 2011, incident
clearly had no bearing on defendant’s possession of the revolver. Wallers testified that he
wanted to talk to defendant about an unrelated crime. Wallers’s testimony that he left a warrant
with jail personnel was simply a gratuitous effort to paint defendant as a bad person. Similarly,
Stemmet’s testimony that, after executing the search warrant, police arrested defendant for an
unrelated crime was irrelevant and prejudicial.
¶ 71 Defendant further contends that the court erred in admitting Julie Smith’s hearsay
testimony that her supervisor, Gina Mineti, verified defendant’s partial thumb print on the
garbage bag holding the revolver. Defense counsel objected without stating a basis, and neither
the public defender nor private counsel included the error in the posttrial motions. Julie
Smith’s testimony that Mineti verified defendant’s print was hearsay (see People v. Smith, 256

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 Ill. App. 3d 610, 615 (1994)) and is not admissible on retrial.

¶ 72 III. CONCLUSION
¶ 73 For the reasons stated, we reverse defendant’s conviction and remand for a new trial.

¶ 74 Reversed and remanded.

¶ 75 JUSTICE BURKE, specially concurring.
¶ 76 I agree with the majority’s analysis concerning the sufficiency of the evidence, as well as
the decision to reverse and remand the case due to cumulative evidentiary errors. I part
company with the majority on the voir dire issue.
¶ 77 Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) requires that the trial court ask each
potential juror whether he or she understands and accepts the four Zehr principles. Defendant
contends that the trial court failed to comply with Rule 431(b) during voir dire. Since
defendant did not preserve this alleged error below, he requests that we review it under the
plain-error doctrine. The first step in such an analysis is to determine whether clear and
obvious error is present. People v. Cohn, 2014 IL App (3d) 120910, ¶ 26.
¶ 78 The majority finds error in the trial court’s phrasing of the question posed to the venire
after each Zehr principle was explained. Instead of asking whether the potential jurors
understood and accepted the principles, the court asked whether they had any “difficulty or
disagreement” with them. This phrasing standing alone is certainly problematic, but I believe
that we must examine the entire colloquy between the court and the venire to determine
whether there was compliance with the rule. Here, the trial court stated,
“Okay, Ladies and Gentlemen, earlier I touched upon some principles of law that apply
to all criminal cases. I am going to explain to you certain principles, and if you
understand the principles, agree with those principles and accept those principles,
please do not raise your hand and that will signify that you understand, you agree and
you accept these principles. If you don’t understand or accept these principles or don’t
agree with them, I would ask that you raise your hand in response to my question.
The defendant is presumed to be innocent of the charge against him. This
presumption remains with the defendant throughout the trial and is not overcome
unless, by your verdict, you find that the State has proven the defendant guilty beyond a
reasonable doubt. Is there anyone who has any difficulty or disagreement with this
proposition of law, the presumption of innocence? If so, raise your hand.
The record reflects none.
The State has the burden of proving the guilt of the defendant beyond a reasonable
doubt. This burden remains upon the State throughout the trial. Does anyone have any
difficulty or disagreement with this proposition of law, the burden of proof? If so, raise
your hand.
The record reflects none.
The defendant is not required to offer any evidence on his own behalf. Does anyone
have any difficulty or disagreement with this principle of law. If so, please raise your
hand.
The record reflects none.

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 If the defendant does not testify, it cannot be held against him. Does anyone have
any difficulty or disagreement with this proposition of law, the right to remain silent? If
so, please raise your hand.
The record reflects none.” (Emphasis added.)
¶ 79 The trial court used the same procedure when impaneling the alternate jurors. When
addressing all potential jurors, the court clearly instructed them to raise their hands if they did
not understand or accept the principles or if they did not agree with them. After each principle
was explained, the court asked if any potential jurors had any difficulty or disagreement with it.
In light of the instructions, “difficulty” referred to whether a potential juror had difficulty
understanding or accepting the principle.
¶ 80 Had the trial court used the best practice of simply parroting the language of the rule in its
questions, this issue never would have arisen on review. That said, the potential jurors sitting
through this voir dire would have known that they should raise hands if they did not
understand, accept, or agree with each Zehr principle.

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