People v. Long

2018 IL App (4th) 150919 FILED
August 20, 2018
NO. 4-15-0919 Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Calhoun County
TIMOTHY W. LONG, ) No. 14CF43
Defendant-Appellant. )
) Honorable
) Debra L. Wellborn,
) Judge Presiding.
______________________________________________________________________________

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with
opinion.
Justices Knecht and Turner concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant, Timothy W. Long, was convicted of metham­

phetamine conspiracy (720 ILCS 646/65(a) (West 2012)) and sentenced to 30 years in prison. He

appeals, arguing (1) the evidence was insufficient to prove him guilty of conspiring to manufac­

ture the amount of methamphetamine charged by the State, (2) he was denied a fair trial by the

admission of highly prejudicial other-crimes evidence, (3) he was denied a fair trial due to prose­

cutorial misconduct, (4) his trial counsel provided ineffective assistance, (5) the trial court erred

by denying his posttrial request for a continuance to investigate whether an impaneled juror testi­

fied falsely during voir dire, (6) his sentence was excessive, and (7) the court abused its discre­

tion by ordering a $5000 reimbursement for his court-appointed counsel. We reduce defendant’s
conviction and remand for resentencing but otherwise affirm the court’s judgment.

¶2 I. BACKGROUND

¶3 On April 29, 2015, the State charged defendant by a second amended information

with unlawful methamphetamine conspiracy. Id. Specifically, it alleged that, on or about No­

vember 22, 2014, defendant and an individual named Michael Blumenberg agreed to manufac­

ture methamphetamine. It further alleged defendant delivered Coleman fuel, a methamphetamine

manufacturing material, to Blumenberg for that purpose, resulting in the manufacture of 486

grams of methamphetamine.

¶4 On May 11 and 12, 2015, defendant’s jury trial was conducted. The State’s evi­

dence showed that on November 26, 2014, law enforcement officers executed a search warrant

on a trailer owned by Dennis Burge. The officers discovered a “shake[-]and[-]bake meth lab”

and methamphetamine manufacturing materials, including Coleman fuel. The State’s evidence

showed two containers of Coleman fuel were found in the trailer—one half-empty, one gallon

container that was found on the bathroom sink area and one empty, 32 ounce container that was

found in a bathroom cabinet. Additionally, methamphetamine was discovered in three separate

containers. Specifically, 285.5 grams of methamphetamine were found in a Gatorade bottle in the

trailer’s bathroom sink and two bottles containing 133 grams and 268.2 grams of methampheta­

mine were found in a bedroom. Both Burge and Blumenberg were present when the search war­

rant was executed and were arrested.

¶5 Sean King testified he was a special agent with the Illinois State Police and was

assigned to its Meth Response Team. He participated in cleaning up the methamphetamine lab

discovered in Burge’s trailer and took photographs of the scene, which were admitted into evi­

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dence. King described the scene in the trailer and the process for manufacturing methampheta­

mine using the “shake[-]and[-]bake” method. He testified the trailer contained evidence of three

“meth cooks,” one in the bathroom sink and two in the trailer’s bedroom. King was unable to

state when the “meth cooks” occurred.

¶6 Sheriff’s deputy Kyle Jacobs testified he investigated the “bust” of the meth lab in

Burge’s trailer and, on December 30, 2014, interviewed defendant. Their interview was recorded

and portions of the recording were played for the jury. The record reflects that, during the inter­

view, defendant acknowledged providing a can of Coleman fuel to Blumenberg on the day that

the search warrant was executed. Defendant also acknowledged using methamphetamine in the

past, previously purchasing methamphetamine from Blumenberg, and being aware that Burge

and Blumenberg had been manufacturing methamphetamine. He also admitted purchasing Su­

dafed, a methamphetamine manufacturing material, and discussed actions he took to make the

purchase of such an item appear unrelated to the manufacture of methamphetamine. Finally, de­

fendant acknowledged that code words were used between individuals to discuss drug-related

topics.

¶7 On direct-examination, Jacobs testified that defendant never asserted that he gave

the Coleman fuel to Blumenberg for cooking or heating purposes. On cross-examination, he

acknowledged that he never specifically asked defendant why he brought the Coleman fuel to

Blumenberg. However, on redirect, Jacobs also testified that defendant had been told that he was

being charged with providing the Coleman fuel for “meth purposes.”

¶8 At the time of defendant’s trial, Blumenberg was an inmate in the Illinois De­

partment of Corrections (DOC). He testified that he had been charged with manufacturing and

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possessing methamphetamine; however, he agreed to give a statement to the police regarding the

circumstances underlying his charges, and in exchange for his statement, the manufacturing

charge against him was dismissed, he pleaded guilty to an amended possession charge, and he

received a six-year prison sentence. Blumenberg testified the police interviewed him three times,

and he acknowledged that he provided more information each time he was interviewed. He stat­

ed he was trying to “[i]mprove [his] chances for a deal” by withholding information.

¶9 Blumenberg acknowledged that he was arrested at Burge’s trailer and that “there

was a meth cook going on at that time.” He was shown a photograph of the inside of Burge’s

trailer and identified the “Coleman fuel jug” that was sitting on the bathroom sink as being given

to him by defendant. He stated he called defendant the night before his arrest and told defendant

that he “needed Coleman—[he] needed some fuel for [his] stove.” Blumenberg testified he spoke

in code because he was high on dope and paranoid.

¶ 10 Blumenberg stated he was living in a camper near Burge’s trailer. The day of his

arrest, defendant brought him the Coleman fuel and the two men went inside the camper and

“smoked meth” or “ani-dope,” which defendant had with him.

¶ 11 Blumenberg testified he suspected defendant had Coleman fuel because a day or

two before the underlying offense defendant stated he had recently made methamphetamine. Ac­

cording to Blumenberg, defendant and an individual named Roy Connell went to Burge’s trailer

while only Blumenberg was present “to get some dope.” Defendant reported that he “had just

*** made some dope” but was out and wanted to buy more. Blumenberg testified he sold dope to

both defendant and Connell and discussed with them that he and Burge were planning to make

more methamphetamine but were “waiting on a couple ingredients.” Those ingredients included

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Coleman fuel, which Burge was attempting to acquire. Blumenberg testified he expressly told

defendant that he and Burge did not have Coleman fuel and that it was one of the ingredients be­

ing gathered. Ultimately, Burge did not obtain any Coleman fuel.

¶ 12 Blumenberg testified he made methamphetamine with defendant 12 to 15 years

earlier. However, defendant’s counsel objected to the testimony as being “outside the scope of 10

years,” and the trial court sustained his objection.

¶ 13 On cross-examination, Blumenberg testified he had a Coleman stove in his camp­

er. However, he denied using the stove, stating he did not know if it worked. He further stated

that he called defendant the night before his arrest as well as the following morning “to make

sure [defendant] was still coming.” Blumenberg stated he was “out of dope” on the day of his

arrest but that Burge may have had some. He testified he generally obtained more methamphet­

amine by “[h]elping [Burge] make it.” He acknowledged that, around the time of his arrest, he

used methamphetamine “[e]very day, all day.”

¶ 14 Blumenberg testified that, on the day of his arrest, he initially told the police that

he was at Burge’s residence because he was doing his laundry. He admitted that he lied to the

police because he did not “want to get arrested for making dope.” Blumenberg testified that he

was aware “from the very beginning” that the police wanted information on Burge. He further

admitted that he lied to the police during his second interview when he told them he had only

“cooked” with Burge on one occasion.

¶ 15 Joseph Gettings testified he was currently in the custody of law enforcement. He

recalled that, in December 2001, he was charged with intent to manufacture methamphetamine.

Gettings testified regarding the circumstances underlying his charges, stating that he and defend­

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ant were stopped by the police while in Gettings’s car. In the car, the police found methamphet­

amine manufacturing materials, including Coleman fuel that defendant had provided.

¶ 16 Defendant presented the testimony of Blumenberg’s brother, Jeffrey, who assert­

ed that Blumenberg owned a Coleman stove that he kept in his camper. Jeffrey identified the

stove at trial and the stove was admitted into evidence. On cross-examination, Jeffrey stated he

had never used the stove nor had he observed Blumenberg use the stove.

¶ 17 Sherrie Brandi Kieffer testified on defendant’s behalf that she lived near Burge’s

trailer and could see it from her house. In November 2014, she and Burge were dating. On No­

vember 26, 2014, Kieffer went to Burge’s trailer to help clean and observed Blumenberg exit a

back bedroom with a Gatorade bottle that contained methamphetamine. She did not observe de­

fendant around Burge’s residence that day.

¶ 18 Defendant testified on his own behalf. He recalled that on the evening of Novem­

ber 25, 2014, he was working outside in his shed when Blumenberg visited with a friend. De­

fendant stated he had an old, rusty can of Coleman fuel in his shed with “a little bit in it.”

Blumenberg reported to defendant that he was out of money and asked “if he could use that can

of Coleman fuel for his stove.” Defendant testified he gave the can to Blumenberg but they con­

tinued to talk and Blumenberg forgot to take the can when he left.

¶ 19 The following morning, defendant was getting ready to visit his father when he

received a telephone call from Blumenberg. He testified he was busy making coffee and getting

ready so he put the call “on speaker phone.” Blumenberg asked if defendant still had the can of

Coleman fuel and said he needed the can for his stove. Defendant offered to bring the can to

Blumenberg. He testified that Blumenberg also complained that he was out of money and that he

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“was going to be cooking on the Coleman stove.” According to defendant, Connell was also pre­

sent at his house when Blumenberg called and was sitting in defendant’s kitchen near the phone.

¶ 20 Defendant testified that he delivered the can of Coleman fuel to Blumenberg that

morning and then went to visit his father. He denied that he also smoked methamphetamine with

Blumenberg that morning or that Blumenberg told him he was going to use the Coleman fuel to

“cook” methamphetamine.

¶ 21 On cross-examination, defendant testified he had known Blumenberg most of his

life. He admitted that he smoked methamphetamine with Blumenberg on November 25, 2014, at

Burge’s residence and that he paid Blumenberg $25. Defendant testified he did not think that

smoking meth was a big deal. Further, he acknowledged that he had “heard rumors” that Burge

was making methamphetamine and advised Blumenberg not to hang around with Burge because

of his methamphetamine-related activities. Defendant also recalled telling the police that Connell

had received a text from someone saying that Burge and Blumenberg “cooked a turkey,” which

was code for having made methamphetamine, and he agreed that Blumenberg told him that

Burge wanted to make “another batch.”

¶ 22 Additionally, defendant testified that he knew how to make methamphetamine

and that the ingredients included pseudoephedrine, anhydrous ammonia, drain cleaner, and

Coleman fuel. He acknowledged that he had previously been convicted of burglary, manufactur­

ing methamphetamine, and possession of anhydrous ammonia.

¶ 23 The record reflects defendant’s counsel also called Connell as a witness; however,

before Connell began testifying, the State advised the trial court that Connell had pending crimi­

nal charges that were connected with the factual circumstances of defendant’s case. The court

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allowed Connell to speak with his attorney, and following that conversation, Connell elected to

invoke his fifth amendment privilege against self-incrimination. The trial court then barred Con­

nell from testifying, and the jury was instructed to disregard the fact that he was called as a wit­

ness but did not testify.

¶ 24 Following the parties’ closing arguments, the jury found defendant guilty of the

charged offense. On June 11, 2015, defendant filed a motion for a judgment notwithstanding the

verdict or, alternatively, a new trial and other relief. On July 10, 2015, he amended his posttrial

motion and, relevant to this appeal, argued the trial court erred by allowing the admission of oth­

er-crimes evidence, the State made improper arguments, his trial counsel was ineffective for fail­

ing to object to various alleged errors, and he was not proven guilty beyond a reasonable doubt

because no evidence showed that the Colman fuel he furnished to Blumenberg resulted in any of

the methamphetamine seized from Burge’s trailer.

¶ 25 On August 12, 2015, the trial court called the matter for hearing on defendant’s

posttrial motion and for sentencing. Initially, however, defendant’s counsel requested a continu­

ance to investigate “a rumor” regarding one of defendant’s jurors. Counsel explained that the

“source” of the rumor was an excused juror named Sheila Prokuski. He asserted he personally

met with Prokuski at a restaurant she owned and Prokuski reported that a juror named Maggie

Smith “often attended coffee at [Prokuski’s] restaurant with relatives of” Blumenberg and Burge.

Defendant’s counsel stated Prokuski further stated as follows:

“That, in fact, following the bust, if you will, of Burge and Blumenberg, that

they—let’s just call them the panel, if you will, of people who would sit around

this table, which would include *** [Smith], would discuss the case ***. Once

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 [defendant] was arrested, [defendant’s] name was mentioned on more than one

occasion in the presence of *** Smith.”

Counsel asserted that, during voir dire, Smith acknowledged knowing potential witnesses or their

family members, that she had “coffee with the grandparents,” and that she heard “hearsay” about

something other than defendant’s particular case. Defendant’s counsel further asserted that he

had hired an investigator to interview Smith but the investigator had not yet done so.

¶ 26 The State objected to defendant’s request for a continuance, and the trial court

denied his request. In so holding, the court noted that it recalled the voir dire questioning of both

Smith and Prokuski and that Smith indicated “she had not particularly heard about” defendant’s

case while Prokuski herself did not candidly answer questions posed to her by the court. It also

found the concerns regarding Smith as a juror could have been followed up on earlier and noted

the matter was “now three months from the trial date.”

¶ 27 The trial court next addressed and heard arguments relative to defendant’s

posttrial motion. Ultimately, the court denied the motion and proceeded with defendant’s sen­

tencing. The court noted that it had reviewed defendant’s presentence investigation report, which

showed defendant had a criminal history that included numerous felony convictions and previous

prison sentences to DOC. Defendant presented the testimony of two witnesses and gave a state­

ment in allocution. The court then sentenced him to 30 years in prison and imposed a $10,000

fine.

¶ 28 Finally, at the conclusion of defendant’s sentencing hearing, the trial court con­

ducted a hearing on its own motion to determine the amount of payment owed by defendant for

his court-appointed counsel. The court questioned defendant and noted that defense counsel had

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submitted a bill totaling $9911. The court, however, reduced defense counsel’s bill to $6471

based upon its own calculation of a reasonable number of hours spent on defendant’s case and

what it found to be a “standard rate” for appointed counsel. It then noted that it had statutory au­

thority to order a reimbursement “up to [$5000] for a felony.” The court also considered “the

bond that was posted,” which the record reflects was $15,000 posted by defendant’s father. It

then ordered a $5000 reimbursement fee.

¶ 29 On September 8, 2015, defendant filed a motion to reconsider his sentence, argu­

ing the trial court failed to give appropriate weight to mitigating factors, his sentence was dispro­

portionate to Blumenberg’s six-year sentence, it was error to sentence him for allegedly conspir­

ing to manufacture between 400 and 900 grams of methamphetamine because the State failed to

prove that the Coleman fuel he provided resulted in the production of any quantity of metham­

phetamine, and the fine imposed by the court was excessive. On November 6, 2015, the court

conducted a hearing on defendant’s motion and denied it.

¶ 30 This appeal followed.

¶ 31 II. ANALYSIS

¶ 32 A. Sufficiency of the Evidence

¶ 33 On appeal, defendant first argues the evidence presented at his trial was insuffi­

cient to prove him guilty of methamphetamine conspiracy as charged by the State. Specifically,

he points out that the State alleged he conspired to manufacture 400 to 900 grams of metham­

phetamine, a Class X felony with an applicable sentencing range of 12 to 50 years in prison. Id.

§ 15(a)(2)(D). Defendant argues, however, that the State’s evidence failed to establish the quanti­

ty of methamphetamine that “was actually attributable to [the charged] conspiracy.” Although he

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acknowledges that a total amount of over 400 grams of methamphetamine was found in Burge’s

trailer in three separate containers, he contends the evidence failed to show that all, or any, of

that methamphetamine was attributable to the alleged conspiracy and the Coleman fuel he gave

to Blumenberg.

¶ 34 As relief, defendant asks this court to “reduce [his] conviction” to the “general”

form of the offense, a Class 1 felony based on the manufacture of less than 15 grams of metham­

phetamine (id. § 15(a)(2)(A)), and remand for resentencing. Alternatively, he asks that, in the

event this court finds a portion of the methamphetamine was attributable to the conspiracy, this

court reduce his conviction to conspiracy to manufacture 100 to 400 grams of methamphetamine,

a Class X felony with an applicable sentencing range of 9 to 40 years in prison (id.

§ 15(a)(2)(C)).

¶ 35 In response to defendant’s claim, the State concedes that it failed to prove beyond

a reasonable doubt that two of the methamphetamine “cooks,” specifically, the two “cooks”

seized from the bedroom in Burge’s trailer, were attributable to the conspiracy involving defend­

ant. However, it contends the evidence was sufficient to support a reasonable inference that the

285.5 grams of methamphetamine found in the trailer’s bathroom sink were attributable to de­

fendant’s conspiracy. Thus, although it agrees with defendant that his conviction should be re­

duced and the case remanded for resentencing, it maintains his alternative request for relief

should be granted and that defendant should still be sentenced as a Class X offender based on

“the manufacture of 100 or more grams but less than 400 grams of methamphetamine.” Id.

¶ 36 Under the Methamphetamine Control and Community Protection Act (Act), “[a]

person engages in a methamphetamine conspiracy when” the following circumstances exist:

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 “(1) the person intends to violate one or more provisions of th[e] Act;

(2) the person agrees with one or more persons to violate one or more pro­

visions of th[e] Act; and

(3) the person or any party to the agreement commits an act in furtherance

of the agreement.” Id. § 65(a).

In this case, the State alleged defendant was engaged in a methamphetamine conspiracy because

he agreed with Blumenberg to participate in methamphetamine manufacturing, a violation of

section 15(a)(1) of the Act (id. § 15(a)(1) (“It is unlawful to knowingly participate in the manu­

facture of methamphetamine with the intent that methamphetamine or a substance containing

methamphetamine be produced.”)).

¶ 37 The Act further provides that a person who engages in a methamphetamine con­

spiracy “shall face the penalty for the offense that is the object of the conspiracy” and that the

person “may be held accountable for the cumulative weight of any methamphetamine, substance

containing methamphetamine, methamphetamine precursor, or substance containing metham­

phetamine precursor attributable to the conspiracy for the duration of the conspiracy.” Id.

§ 65(b). As indicated, the object of the conspiracy in this case was a violation of section 15(a)(1)

of the Act, i.e., participation in methamphetamine manufacturing. Relative to the facts and argu­

ments presented in this case, a violation of section 15(a)(1) carries the following penalties:

“(A) A person who participates in the manufacture of less than 15 grams

of methamphetamine or a substance containing methamphetamine is guilty of a

Class 1 felony.

***

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 (C) A person who participates in the manufacture of 100 or more grams

but less than 400 grams of methamphetamine or a substance containing metham­

phetamine is guilty of a Class X felony, subject to a term of imprisonment of not

less than 9 years and not more than 40 years, and subject to a fine not to exceed

$200,000 or the street value of the methamphetamine manufactured, whichever is

greater.

(D) A person who participates in the manufacture of 400 or more grams

but less than 900 grams of methamphetamine or a substance containing metham­

phetamine is guilty of a Class X felony, subject to a term of imprisonment of not

less than 12 years and not more than 50 years, and subject to a fine not to exceed

$300,000 or the street value of the methamphetamine manufactured, whichever is

greater.” Id. § 15(a)(2).

¶ 38 “When considering a challenge to the sufficiency of the evidence, a reviewing

court must determine whether, viewing the evidence in the light most favorable to the State, a

rational trier of fact could have found the required elements of the crime beyond a reasonable

doubt.” People v. Bradford, 2016 IL 118674, ¶ 12, 50 N.E.3d 1112. Additionally, any fact that

increases the range of penalties for a crime is considered an element of the charged offense and

must be submitted to a jury and proven beyond a reasonable doubt. Apprendi v. New Jersey, 530

U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penal­

ty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.”); Alleyne v. United States, 570 U.S. 99, 103 (2013) (“Any fact that,

by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and

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found beyond a reasonable doubt.”). In this instance, not only was the State required to prove

that defendant intended and agreed with Blumenberg to participate in methamphetamine manu­

facturing and that one of the conspirators committed an act in furtherance of the agreement, it

also had to prove the amount of methamphetamine attributable to the conspiracy.

¶ 39 Here, we agree with the parties that the evidence failed to establish that all of the

methamphetamine discovered in Burge’s trailer was attributable to the conspiracy involving de­

fendant. In particular, although Blumenberg testified he was out of methamphetamine on, or im­

mediately prior to, November 26, 2014, he acknowledged that Burge might have still been in

possession of some. Any methamphetamine already in Burge’s possession had to have been

manufactured prior to defendant’s delivery of the Coleman fuel and could not be attributable to

defendant’s agreement with Blumenberg.

¶ 40 Nevertheless, we also agree with the State’s position that it presented sufficient

evidence to show that at least one of the methamphetamine “cooks” discovered in the trailer on

November 26, 2014, was attributable to the conspiracy at issue. Evidence was presented that

Blumenberg and Burge intended to manufacture methamphetamine but were out of Coleman fuel

and, immediately prior to November 26, 2014, were attempting to obtain that necessary metham­

phetamine manufacturing ingredient. On the morning of November 26, 2014, defendant deliv­

ered Coleman fuel to Blumenberg. Later that day, the police executed a search warrant on

Burge’s trailer, and according to Blumenberg, “there was a meth cook going on at that time.”

Evidence further showed that three methamphetamine “cooks” were discovered in Burge’s trail­

er. While two of the cooks were located in the trailer’s bedroom, one was located in the bath­

room sink and was found to contain 285.5 grams of methamphetamine. In fact, all three meth­

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amphetamine “cooks” each contained over 100 grams of methamphetamine.

¶ 41 A reasonable inference from the evidence presented is that at least one of the

methamphetamine “cooks” found in Burge’s trailer occurred on November 26, 2014, after

Blumenberg received the Coleman fuel from defendant. Further, because Blumenberg and Burge

had no other Coleman fuel on or immediately prior to November 26, 2014, the “cook” that oc­

curred that day had to have been accomplished through the use of the Coleman fuel provided by

defendant. A reasonable inference may also be made that the methamphetamine “cook” found in

the bathroom sink and in close proximity to the Coleman fuel provided by defendant was the

“cook” that occurred on November 26, 2014. Thus, the 285.5 grams of methamphetamine asso­

ciated with that “cook” were attributable to the conspiracy.

¶ 42 Defendant points out that Blumenberg never testified that he used the fuel provid­

ed by defendant in the “batch” of methamphetamine he made shortly before his arrest, suggest­

ing that such testimony was necessary to establish a connection between defendant and the meth­

amphetamine found in the trailer. We disagree. As stated, Blumenberg’s testimony showed he

and Burge were out of Coleman fuel until defendant delivered fuel to them on November 26,

2014. Thus, any methamphetamine made on that date is necessarily attributable to the fuel pro­

vided by defendant.

¶ 43 Defendant also contends that, to establish the quantity of drugs attributable to the

conspiracy, the State was required to present evidence regarding how much fuel defendant pro­

vided and how much fuel is required to manufacture methamphetamine. He cites United States v.

Anderson, 236 F.3d 427, 429-30 (8th Cir. 2001), to support his position. However, as the State

points out, that case involved the seizure of only a methamphetamine precursor. Id. at 429. Ex­

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pert testimony was then presented regarding the quantity of drugs that could theoretically be

made from the amount of the precursor that was seized. Id. In this case, evidence of an actual

yield was presented, rendering evidence of a theoretical yield unnecessary. To establish a con­

nection between the fuel provided by defendant and the methamphetamine found in the trailer, it

was enough that the State presented evidence showing that Coleman fuel was a necessary meth­

amphetamine manufacturing ingredient, Blumenberg and Burge had no Coleman fuel before be­

ing given fuel by defendant, and Blumenberg “cooked” methamphetamine after defendant’s de­

livery of fuel.

¶ 44 Here, the evidence sufficiently established that 100 to 400 grams of methamphet­

amine was attributable to the conspiracy involving defendant rather than the 400 to 900 grams

charged by the State. As a result, we accept the relief suggested by the parties and reduce de­

fendant’s conviction to the offense of methamphetamine conspiracy based on his participation in

the manufacture of 100 or more grams but less than 400 grams of a substance containing meth­

amphetamine (720 ILCS 646/15(a)(2)(C) (West 2012)) and remand for resentencing. See Ill. S.

Ct. R. 615(b)(3) (eff. Apr. 26, 2012) (providing that a reviewing court may “reduce the degree of

the offense of which the appellant was convicted”).

¶ 45 B. Other-Crimes Evidence

¶ 46 Defendant next argues he was denied a fair trial by the admission of methamphet­

amine-related, other-crimes evidence. He contends such evidence was admitted for an improper

purpose, i.e., to persuade the jury that he had a propensity to commit methamphetamine-related

offenses, and he maintains the evidence was “highly prejudicial.”

¶ 47 “Evidence of other crimes is admissible if it is relevant for any purpose other than

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to show the defendant’s propensity to commit crime.” People v. Pikes, 2013 IL 115171, ¶ 11,

998 N.E.2d 1247. In particular, other-crimes evidence is admissible “as proof of motive, oppor­

tunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” Ill. R.

Evid. 404(b) (eff. Jan. 1, 2011). However, even where evidence of other crimes is offered for a

permissible purpose, it should not be admitted if the prejudicial impact of the evidence substan­

tially outweighs its probative value. People v. Chapman, 2012 IL 111896, ¶ 19, 965 N.E.2d

1119; see also People v. Cloutier, 156 Ill. 2d 483, 505, 622 N.E.2d 774, 786 (1993) (“[O]ther­

crimes evidence is admissible, if relevant and not unduly prejudicial, to show anything other than

a defendant’s mere propensity to commit a crime.”). The trial court has discretion regarding the

admissibility of other-crimes evidence, and its ruling will not be disturbed on review absent a

clear abuse of that discretion. Id. at 507.

¶ 48 On appeal, defendant argues that the improperly admitted other-crimes evidence

included testimony from Blumenberg that defendant (1) stated he made methamphetamine in the

past; (2) possessed “ani-dope,” which defendant and Blumenberg smoked on the day of the al­

leged offense; and (3) manufactured methamphetamine with Blumenberg 12 to 15 years earlier.

He further contends that improper other-crimes evidence was admitted through his recorded in­

terrogation, portions of which were played for the jury. Specifically, defendant complains that he

was shown discussing (1) his personal use of methamphetamine; (2) individuals he knew who

were involved in manufacturing methamphetamine; and (3) his purchase of Sudafed, a metham­

phetamine making material, and how to make the possession of such material appear unconnect­

ed to methamphetamine manufacturing.

¶ 49 Here, defendant acknowledges that he failed to properly preserve all but two of

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his claims of error for appellate review. See People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d

1124, 1130 (1988) (holding that to preserve an issue for appellate review, a defendant must both

make a trial objection and raise the issue in a written posttrial motion). However, he contends the

admissibility of such evidence constituted first-prong plain error, and thus, this court may reach

the merits of his claim. Pursuant to the plain error doctrine, a defendant’s procedural default may

be excused in two instances:

“(1) when a clear or obvious error occurred and the evidence is so closely bal­

anced that the error alone threatened to tip the scales of justice against the defend­

ant, regardless of the seriousness of the error, or (2) when a clear or obvious error

occurred and that error is so serious that it affected the fairness of the defendant’s

trial and challenged the integrity of the judicial process, regardless of the close­

ness of the evidence.” (Internal quotation marks omitted.) People v. Sebby, 2017

IL 119445, ¶ 48, 89 N.E.3d 675.

“The initial analytical step under either prong of the plain error doctrine is determining whether

there was a clear or obvious error at trial.” Id. ¶ 49.

¶ 50 As to defendant’s claims, we first find no error with respect to his assertion that

the trial court improperly admitted evidence that there were “others he knew who were involved

with methamphetamine.” It was not a crime for defendant to have knowledge that other people

were engaged in methamphetamine-related activities, and thus, an other-crimes analysis is simp­

ly inapplicable to such evidence.

¶ 51 Second, defendant includes within his claims of error evidence to which his coun­

sel raised an objection at trial and the objection was sustained. Specifically, the record shows the

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State questioned whether Blumenberg “ever participated in making meth with” defendant and

Blumenberg responded that he had, approximately 12 to 15 years earlier. Defendant’s counsel

objected on the basis that the evidence was “outside the scope of 10 years” and the trial court

sustained the objection. Although the jury was not immediately admonished to disregard the evi­

dence, and defense counsel did not request such an admonishment, the record indicates the jury

was ultimately instructed to disregard matters that were the subject of a sustained objection and

only consider evidence the court had received. Given these circumstances, no error occurred be­

cause the challenged testimony was not admitted into evidence. Additionally, the record fails to

show prejudice to defendant. See People v. Martinson, 89 Ill. App. 3d 66, 68, 411 N.E.2d 360,

361 (1980) (“[N]o prejudice attached to [the] defendant from the questions asked, as an objection

was sustained, and the jury was given a general instruction to disregard such testimony.”).

¶ 52 Third, defendant contends error occurred regarding the admission of evidence re­

lated to his prior purchase of Sudafed, and he maintains that the issue was properly preserved for

review. The record shows, at trial, defendant objected to the evidence on the basis that it was ir­

relevant, and in his posttrial motion, he argued that it was both irrelevant and highly prejudicial.

Given these circumstances, we accept defendant’s contention that the issue was not forfeited.

¶ 53 Nevertheless, addressing the merits of this particular claim, we can find no error.

In overruling defendant’s relevancy objection to the Sudafed evidence, the trial court found that

it was “relevant to proving the intent to [commit] the conspiracy.” It further stated that “evidence

of knowledge of the products [used to manufacture methamphetamine] in total and their use is

relevant to the conspiracy.” As stated, other-crimes evidence may be relevant for the purposes of

showing intent and knowledge. See also People v. Wilson, 214 Ill. 2d 127, 136, 824 N.E.2d 191,

- 19 ­
196 (2005) (“Other-crimes evidence may *** be permissibly used to show, by similar acts or in­

cidents, that the act in question was not performed inadvertently, accidently, involuntarily, or

without guilty knowledge.”). Here, defendant’s statement regarding his purchase of Sudafed and

the methods used to make such a purchase appear unconnected with methamphetamine manufac­

turing helped establish his knowledge of methamphetamine manufacturing procedures and inten­

tion to engage in the alleged conspiracy. Thus, it held probative value. Further, on the record pre­

sented, we do not find that the evidence was so prejudicial that its probative value was substan­

tially outweighed.

¶ 54 Moreover, even assuming the evidence was improperly admitted, we would find

no reversible error. “While the erroneous admission of other-crimes evidence carries a high risk

of prejudice and ordinarily calls for reversal [citation], the evidence must be so prejudicial as to

deny the defendant a fair trial, i.e., it must have been a material factor in his conviction such that

without the evidence the verdict likely would have been different.” People v. Cortes, 181 Ill. 2d

249, 285, 692 N.E.2d 1129, 1145 (1998); see also People v. Nieves, 193 Ill. 2d 513, 530, 739

N.E.2d 1277, 1285 (2000) (“[The supreme] court repeatedly has held that the improper introduc­

tion of other-crimes evidence is harmless error when a defendant is neither prejudiced nor denied

a fair trial based upon its admission.”). “If the error is unlikely to have influenced the jury, ad­

mission will not warrant reversal.” Cortes, 181 Ill. 2d at 285.

¶ 55 Here, we cannot find that the challenged evidence was a material factor in de­

fendant’s conviction or that a different verdict would have resulted without it. The undisputed

evidence showed that defendant knew Coleman fuel was a methamphetamine manufacturing in­

gredient and that Blumenberg and Burge had been making methamphetamine. According to

- 20 ­
Blumenberg, shortly prior to November 26, 2014, defendant knew that Blumenberg and Burge

intended to make more methamphetamine but were out of Coleman fuel and trying to obtain that

ingredient. The undisputed evidence also showed that defendant delivered Coleman fuel to

Blumenberg on November 26, 2014. That same day, Blumenberg “cooked meth” at Burge’s

trailer. The police executed a search warrant and discovered methamphetamine near a half-empty

container of Coleman fuel that Blumenberg testified was given to him by defendant.

¶ 56 Ultimately, the State presented strong evidence of defendant’s guilt. Thus, the

challenged evidence was unlikely to have influenced the jury and no reversible error occurred.

¶ 57 Finally, the remaining other-crimes evidence challenged by defendant includes

testimony from Blumenberg and statements from defendant about defendant’s personal drug use,

as well as Blumenberg’s testimony that defendant stated he had recently made methampheta­

mine. Defendant acknowledges that he forfeited his claims of error as to this evidence. However,

as stated, he maintains that, pursuant to the plain-error doctrine, clear and obvious errors oc­

curred in the admission of the evidence and that reversal is warranted because the evidence was

otherwise closely balanced. We disagree. Like before, evidence of defendant’s methampheta­

mine-related activities was relevant to show his intent and knowledge with respect to the charged

conspiracy. Further, even assuming that the challenged evidence was improperly admitted, a re­

view of the record fails to reflect that the evidence was closely balanced. As discussed above, the

State presented strong evidence of defendant’s guilt. The record does not support a finding that

the alleged errors in the admission of the challenged evidence “alone threatened to tip the scales

of justice.” As a result, defendant has failed to demonstrate plain error.

¶ 58 C. Prosecutorial Misconduct

- 21 ­
¶ 59 On appeal, defendant further argues that the prosecutor’s conduct during each

stage of his trial was improper and denied him a fair trial. He contends that the prosecutor im­

properly argued facts that were not in evidence, denigrated his character, vouched for

Blumenberg’s credibility, and created an “us-versus-them” mentality with the jury. Again, de­

fendant has acknowledged that these issues were not properly preserved for appeal; however, he

maintains this court may review the issues he raises for plain error.

¶ 60 “[A] pattern of intentional prosecutorial misconduct may so seriously undermine

the integrity of judicial proceedings as to support reversal under the plain-error doctrine.” People

v. Johnson, 208 Ill. 2d 53, 64, 803 N.E.2d 405, 412 (2003). Pervasive prosecutorial misconduct

that encourages a jury to return a verdict grounded in emotion rather than rational deliberation of

the facts of the case adversely affects a defendant’s right to a fair trial and qualifies as a structur­

al defect. Id. at 84-85. Additionally, such misconduct “undermines the trustworthiness and repu­

tation of the judicial process, affecting the very integrity of the judicial process itself.” (Internal

quotation marks omitted.) Id. at 85. Here, defendant complains that prosecutorial misconduct oc­

curred at every level of the underlying proceedings and denied him his right to a fair trial.

¶ 61 1. Opening Statement

¶ 62 Defendant contends two instances of prosecutorial misconduct occurred during

the State’s opening statement. Generally, during his or her opening statement, a prosecutor “is

allowed to comment on what the expected evidence will be and reasonable inferences there­

from.” Cloutier, 156 Ill. 2d at 507. “Absent deliberate misconduct, incidental and uncalculated

remarks in opening statement cannot form the basis of reversal ***.” Id. Reversal is not required

on the basis of prosecutorial remarks unless there is “substantial prejudice” to the defendant

- 22 ­
“such that the result would have been different absent the complained-of remark.” Id

¶ 63 First, defendant argues the prosecutor improperly attempted to create an “us­

versus-them” mentality by placing himself and the jury on the same side and in opposition to de­

fendant. He challenges the following comments by the prosecutor:

“What we are going to present is evidence that there are two communities

in Calhoun County. One is the ordinary, go about your job, raise your family,

community, and then existing side by side with that there is a community of

methamphetamine in Calhoun County.

That community involves people that make it, people that buy it, people

that sell it, people that use it. And what the evidence is going to show is that’s a

tight-knit community where everybody helps each other for the benefit of main­

taining that system.”

¶ 64 In Johnson, 208 Ill. 2d at 80, the supreme court held that arguments that “seek to

engender an ‘us-versus-them’ mentality” are “inconsistent with the inherent principles of the

criminal trial process.” In particular, such arguments are “ ‘a perversion of the principle that a

jury is composed of nonpartisans who function under the presumption that a defendant is inno­

cent until proved otherwise.’ ” Id. (quoting People v. Thomas, 146 Ill. App. 3d 1087, 1089, 497

N.E.2d 803, 804 (1986)). In Johnson, the following prosecutorial comments were deemed im­

proper:

“ ‘We as a society do not have to live in their twisted world. We do not

have to accept their values. We don’t have to allow that to happen in our commu­

nity. We don’t have to allow these guys blasting sawed off shotguns at other hu­

- 23 ­
 man beings. We as a people can stand together ***.’ ” Id. at 79.

¶ 65 The State argues the prosecutor’s comments in this case are distinguishable from

those presented in Johnson and were based on a reasonable inference drawn from Blumenberg’s

description of the underlying events. We agree with the State. The comments of the prosecutor in

this case fall far short of what occurred in Johnson. Specifically, here, the prosecutor commented

on two separate communities but did not otherwise use language that aligned or merged himself

with the jury and against defendant. Additionally, evidence was presented at defendant’s trial

that several individuals, i.e., a group or community of individuals, were involved in connected

methamphetamine-related activities. Thus, the record reflects the prosecutor permissibly com­

mented on what the evidence was expected to show at trial, and we find no error as alleged by

defendant.

¶ 66 Second, defendant maintains the prosecutor misstated evidence “by exaggerating

*** improper other-crimes evidence.” In particular, he contends the prosecutor erroneously as­

serted defendant bought Sudafed “in 96-count packs” and on “multiple occasions.” Defendant

argues “[i]t is improper for a prosecutor to comment on what evidence will be introduced and

then fail to produce the evidence.” People v. Helton, 195 Ill. App. 3d 410, 417, 552 N.E.2d 398,

403 (1990).

¶ 67 Initially, as already discussed, we do not find the Sudafed-related evidence was

improper other-crimes evidence as argued by defendant. Further, we find the prosecutor’s com­

ments on the Sudafed evidence were substantially similar to the evidence that was ultimately

presented at trial. In context, the prosecutor remarked as follows with respect to that evidence:

“When [Blumenberg] had told [defendant] that he needed Coleman [fuel],

- 24 ­
 [defendant] had said, well, the Coleman [fuel] was in his shed. [Defendant] talked

about him and Roy Connell buying Sudafed in 96-count packs. Now, Sudafed, as

I said, is one of those ingredients that is an innocent item that you can possess le­

gally.

So, what [defendant] tells the police is that, and he’s not charged with de­

livering the Sudafed, he’s charged with delivering Coleman fuel, but he’s telling

the officers how you cover an innocent purchase.”

¶ 68 At trial, the evidence showed defendant acknowledged that he and Connell had

purchased Sudafed in the past and that defendant described the actions he took to make his pur­

chase appear that it was not for the purpose of manufacturing methamphetamine. Contrary to de­

fendant’s assertion on appeal, there was no unsupported assertion by the prosecutor that defend­

ant purchased Sudafed on “multiple occasions.” Additionally, although the evidence at trial did

not include the quantity of Sudafed purchased by defendant in the past, we find that fact was in­

cidental and insignificant to the issues and arguments presented in the case. Thus, even if we can

find error in the prosecutor’s description of the Sudafed as being “in 96-count packs,” defendant

could not have suffered prejudice.

¶ 69 2. Examination of Witnesses

¶ 70 a. Asking a Witness to Vouch for the Credibility of Another Witness

¶ 71 Defendant contends several instances of prosecutorial misconduct occurred during

the prosecutor’s examination of witnesses. First, he complains that the prosecutor improperly

asked Jacobs to vouch for Blumenberg’s credibility.

¶ 72 As noted by defendant, “[u]nder Illinois law, it is generally improper to ask one

- 25 ­
witness to comment directly on the credibility of another witness.” People v. Becker, 239 Ill. 2d

215, 236, 940 N.E.2d 1131, 1143 (2010). After reviewing the challenged testimony in this case,

we find no violation of above-cited principle.

¶ 73 On direct examination, the prosecutor questioned Jacobs regarding his interview

with Blumenberg and elicited the following testimony:

“Q. Is it unusual for a [criminal suspect] to initially tell you one story and

then tell you a different one afterwards?

A. It happens all the time.

Q. As a rule, based on your training and experience, do the statements be­

come more accurate or less so as time goes on?

A. Much more accurate.”

The State then questioned Jacobs regarding the date of his last interview with Blumenberg and

elicited testimony that, at the time of that final interview, Blumenberg had been in custody for

six months. The following colloquy then occurred:

“Q. So, within a several month period where he would not have had access

to meth, [beer, wine, alcohol], or any other controlled substance?

A. That’s correct.

Q. So he, in theory, would have been sober, straight[-]headed during that

interview?

A. Absolutely.”

¶ 74 The record shows that, upon questioning by the State, Jacobs first offered an opin­

ion regarding the accuracy, over time, of statements given to him by criminal suspects. The

- 26 ­
posed questions, and Jacobs’ responses, were general and not specific to Blumenberg. Although

the prosecutor next elicited testimony from Jacobs about Blumenberg’s sobriety after a period of

custody, he did not ask Jacobs to comment directly on Blumenberg’s credibility, nor did Jacobs

do so. Thus, we disagree with defendant’s characterization of Jacobs’ testimony and find no er­

ror.

¶ 75 b. Bolstering Witness Credibility With Prior Consistent Statement

¶ 76 Defendant further argues that the State improperly bolstered Blumenberg’s credi­

bility by eliciting testimony that his third and final statement to the police was consistent with his

trial testimony. Evidence of a witness’s prior consistent statement is inadmissible to corroborate

the witness’s trial testimony “unless it has been suggested that the witness recently fabricated

testimony or has a motive to testify falsely and the prior statement was made before the motive

arose.” People v. Caffey, 205 Ill. 2d 52, 110, 792 N.E.2d 1163, 1199-200 (2001).

“The danger in prior consistent statements is that a jury is likely to attach dispro­

portionate significance to them. People tend to believe that which is repeated most

often, regardless of its intrinsic merit, and repetition lends credibility to testimony

that it might not otherwise deserve.” (Internal quotation marks omitted.) People v.

Applewhite, 2016 IL App (4th) 140558, ¶ 60, 68 N.E.3d 986.

¶ 77 At trial, the prosecutor questioned Blumenberg regarding his interviews with the

police. Blumenberg agreed he was interviewed three times and gave more information to the po­

lice during each interview. The following colloquy then occurred between the prosecutor and

Blumenberg:

“Q. The final time when—when your attorney struck a deal for six

- 27 ­
 years[—]was when you actually gave the most detailed statement, is that correct?

A. Yes.

Q. Obviously, you gave that statement because you were receiving a lesser

sentence. You understand that you have the obligation to tell the truth, then and

now.

A. Yes.

Q. And the fact that you received a lesser sentence, I guess my question is,

did that cause you to make that up or was what you told the police the truth?

A. I told them the truth.

Q. You did not tell them the full truth the first time or the second time,

though, correct?

A. Correct.

Q. You withheld some of that information?

A. Yes.

Q. And was that essentially because, ultimately, you wanted to try to get a

better deal?

A. Yeah.”

¶ 78 Here, the State elicited testimony from Blumenberg that he had given a prior

statement to police that was consistent with his trial testimony. In particular, Blumberg testified

he previously gave a statement to the police that was “the truth,” and he acknowledged that he

had an obligation to tell the truth at the time he gave that statement and at trial. Further, as ar­

gued by defendant, neither exception for the admission of a prior consistent statement applies in

- 28 ­
this case. Although the State suggests that defense counsel implied recent fabrication in his open­

ing statement by asserting Blumenberg “honed his story,” the record reflects defense counsel’s

argument was directed to the third statement Blumenberg gave the police and not solely to his

trial testimony.

¶ 79 In any event, where the actual substance of a witness’s prior statement is not in­

troduced into evidence, there is otherwise substantial evidence of the defendant’s guilt, and tes­

timony regarding the prior consistent statement amounts to a “mere acknowledgement” of having

made the prior consistent statement, the defendant does not suffer prejudice and application of

the plain error rule is unwarranted. People v. Williams, 264 Ill. App. 3d 278, 288-89, 636 N.E.2d

630, 637 (1993) (distinguishing cases where admission of a prior consistent statement was re­

versible error). Here, the substance of Blumenberg’s prior consistent statement was not intro­

duced at trial. Rather, evidence of such a prior statement was exceedingly minimal and amounted

to a “mere acknowledgment” that it had been made. Moreover, as discussed, the State presented

strong evidence of defendant’s guilt. Under such circumstances, the “danger” posed by prior

consistent statements was not realized and defendant suffered no prejudice.

¶ 80 c. Irrelevant Cross-Examination

¶ 81 Defendant also argues the prosecutor acted improperly by attempting to impugn

his character through irrelevant questioning. See People v. Redmond, 50 Ill. 2d 313, 315, 278

N.E.2d 766, 768 (1972) (stating “questions concerning whether the defendant was ‘lazy’ or

‘shiftless’ were clearly objectionable because they concerned character traits that were not rele­

vant to the crime charged”). Specifically, he notes that, during his cross-examination, the State

elicited testimony from him that he smoked methamphetamine with Blumenberg in Burge’s

- 29 ­
trailer and did not think “smoking meth” was “a big deal.” Further, he notes that during closing

arguments, the prosecutor referenced that testimony and asserted it showed defendant’s “arro­

gance *** towards the law.”

¶ 82 In this instance, given that defendant was charged with conspiring to participate in

methamphetamine manufacturing, we cannot agree that his attitude toward methamphetamine

use was wholly irrelevant. See People v. Williams, 161 Ill. 2d 1, 33, 641 N.E.2d 296, 309 (1994)

(finding “inquiries into [the] defendant’s lack of income and assets were relevant to establish a

financial motive for [the] defendant’s agreement to commit the murder”). Rather, such evidence

was pertinent to the issues of motive and intent to enter into an agreement with Blumenberg. The

case authority relied upon by defendant is clearly distinguishable and, again, we find no error.

¶ 83 d. Improper Impeachment

¶ 84 Finally, defendant argues the prosecutor improperly impeached him with his prior

convictions. He maintains that the trial court only permitted impeachment with one prior convic­

tion, a 2008 conviction for burglary, and the State improperly impeached him with a second con­

viction, a 2001 conviction for a methamphetamine-related offense. Defendant also contends the

State improperly introduced his prior convictions through cross-examination and misstated the

evidence during closing argument by asserting that three prior convictions had been presented.

¶ 85 Initially, we note that, as pointed out by the State, the record clearly refutes de­

fendant’s claim that the trial court only permitted the State to impeach him with his 2008 burgla­

ry conviction. Prior to trial, the State identified four potential prior convictions that could be used

for impeachment purposes—a 2001 conviction related to the manufacture of methamphetamine,

a 2004 conviction for “transport of anhydrous [ammonia],” a 2008 conviction for aggravated

- 30 ­
domestic battery, and a 2008 conviction for burglary. During a pretrial hearing on May 7, 2015,

the trial court ruled that the 2008 burglary conviction, but not the 2008 aggravated domestic bat­

tery conviction, could be used for impeachment. At the time, it postponed ruling on the remain­

ing two convictions.

¶ 86 The following day, May 8, 2015, the trial court entered a docket entry stating that

the defendant’s 2001 and 2004 drug-related convictions could also be used for impeachment

purposes. The same day, the court entered a written order setting forth its decision and stating as

follows:

“The Court having heard the arguments of Counsel as to the portion of

Defendant’s Motion in Limine to exclude use of Defendant’s prior convictions for

impeachment at trial and having reviewed the applicable law, ORDERS;

That PROVIDED the convictions otherwise meet the time and punishment

qualifications [citation], the motion is denied and the prior convictions from 2001

and 2004 for Manufacture of a Controlled Substance and for Tampering with An­

hydrous Ammonia Equipment [sic] may be used to impeach the Defendant.

The Court has considered the remoteness in time to this trial, the subse­

quent additional convictions of the Defendant and that convictions for these types

of drug[-]related offenses can be taken to show that a person who participates in

these offenses does so by dishonest and evasive means. All of these factors are

relevant to the continuous potential for testimonial deceit. Such offenses would

relate to Defendant’s veracity.”

¶ 87 Defendant maintains that the trial court orally ordered that only defendant’s 2008

- 31 ­
burglary conviction could be used for impeachment and its oral ruling must control over its con­

flicting written docket entry (and although not argued by defendant, the court’s written order).

See People v. Roberson, 401 Ill. App. 3d 758, 774, 927 N.E.2d 1277, 1291 (2010) (“When the

oral pronouncement of the court and the written order conflict, the oral pronouncement of the

court controls.”). However, the record fails to reflect any conflicting orders and quite clearly

shows the court permitted impeachment with defendant’s burglary conviction and his two drug-

related convictions.

¶ 88 We note defendant also maintains that the State expressly asserted it did not in­

tend to use defendant’s 2001 methamphetamine-related conviction for impeachment. To support

his contention, defendant cites to portions of the record wherein the parties and the trial court

discussed a request by the State to have the circumstances surrounding defendant’s 2001 convic­

tion admitted as relevant other-crimes evidence, i.e., substantive evidence presented by the State

in its case-in-chief rather than as impeachment following defendant’s election to testify. These

bases for admission of evidence are not the same, and it is apparent from the record that the court

made separate rulings as to each basis. Further, statements by the prosecutor that he was not

seeking the admission of the 2001 offense for impeachment were confined to the context in

which they were made. In other words, the prosecutor was simply clarifying the argument he was

making at the time—that the evidence should be admitted as relevant other-crimes evidence.

¶ 89 Moreover, contrary to defendant’s assertion on appeal, the record shows that, at

trial, the State used the burglary and the two drug-related convictions to impeach defendant, ask­

ing about each conviction during defendant’s cross-examination—although mistakenly indicat­

ing that both drug-related convictions occurred in 2001. Specifically, the following colloquy oc­

- 32 ­
curred between the prosecutor and defendant:

Q. *** [Defendant], you were convicted of burglary in Calhoun County in

[case No. 08-CF-10] in 2008, is that correct?

A. Yes, sir.

Q. And you were convicted in 2001 in Greene County, manufacture of

controlled substances?

A. Yes, sir.

Q. Related to methamphetamine?

A. Yes, sir.

***

Q. *** You were convicted of unlawful possession of anhydrous ammonia

at that time, correct?

A. Yes, sir.”

Thus, as the record supports a finding that the State used three convictions to impeach defendant,

the prosecutor did not misstate the evidence in his closing argument when he referenced im­

peachment by three convictions.

¶ 90 Finally, as stated, defendant also contends that the prosecutor acted improperly by

impeaching him with his prior convictions during cross-examination. The State concedes that

clear or obvious error occurred in this respect but asserts the error did not deprive defendant of

substantial justice or affect the outcome of the case. We agree with the State.

¶ 91 “The general rule is that it is improper to cross-examine a defendant about a prior

conviction even where the conviction has been properly introduced into evidence.” People v.

- 33 ­
Coleman, 158 Ill. 2d 319, 337, 633 N.E.2d 654, 664 (1994). With respect to this rule, the su­

preme court has noted as follows:

“[W]e [have] said, a procedure which permits the impeaching material to be pre­

sented against the defendant twice and in two forms, viz., by cross-examination

and by the record, is not approved. Impeachment of the defendant should be by

means of the record of conviction or an authenticated copy. This rule is founded

upon the possibility that a defendant might be prejudiced during a jury trial if he

is forced to testify concerning prior convictions.” (Internal quotation marks omit­

ted.) People v. Madison, 56 Ill. 2d 476, 488, 309 N.E.2d 11, 17-18 (1974).

However, the court has also held that the presentation of a prior conviction through cross-

examination does not require reversal “unless the error has deprived [the] defendant of substan­

tial justice or influenced the determination of his guilt.” Id.

¶ 92 In Madison, the court found no reversible error due to the improper presentation

of prior convictions during cross-examination on the basis that there was substantial evidence

presented of the defendant’s guilt. Id. at 489. We find the same is true in the present case. The

State presented strong evidence of defendant’s guilt, and the record fails to reflect he sustained

unfair prejudice due to the manner in which his prior convictions were admitted into evidence.

Additionally, as discussed, each of the convictions brought out on cross-examination had been

ruled permissible for purposes of impeachment and references to them on cross-examination

were brief and related to the mere fact that the convictions existed. See People v. Smith, 241 Ill.

App. 3d 365, 381, 610 N.E.2d 91, 101 (1992) (holding that questioning the defendant about prior

convictions on cross-examination did not constitute reversible error where there was sufficient

- 34 ­
circumstantial evidence of the defendant’s guilt, the jury would have learned about the convic­

tions in any event, and the prosecutor did not belabor the point). Thus, no reversible error oc­

curred as defendant was not deprived of substantial justice and the State’s error did not affect the

outcome of the case.

¶ 93 3. Closing Argument and Rebuttal

¶ 94 Defendant further raises several challenges to remarks made by the prosecutor

during his closing and rebuttal arguments.

¶ 95 “Prosecutors are afforded wide latitude in closing argument.” People v. Wheeler,

226 Ill. 2d 92, 123, 871 N.E.2d 728, 745 (2007). They are “allowed to comment on the evidence

and the strength of [the State’s] case and to urge the fearless administration of justice and the

detrimental effect of crime.” Cloutier, 156 Ill. 2d at 507. Also, a prosecutor’s closing remarks

may reflect upon the credibility of a witness where the remarks are based on the evidence or in­

ferences fairly drawn therefrom. People v. Shum, 117 Ill. 2d 317, 348, 512 N.E.2d 1183, 1194

(1987).

¶ 96 The wide latitude given to prosecutors is breached “when they express personal

beliefs or opinions or invoke the State’s Attorney’s office’s integrity, to vouch for a witness’s

credibility.” People v. Wilson, 2015 IL App (4th) 130512, ¶ 66, 44 N.E.3d 632. On review,

“closing arguments must be viewed in their entirety, and the challenged remarks must be viewed

in context.” Wheeler, 226 Ill. 2d at 122. Again, reversal based on improper prosecutorial remarks

is only necessary when there has been “substantial prejudice” to the defendant “such that the re­

sult would have been different absent the complained-of remark.” Cloutier, 156 Ill. 2d at 507.

¶ 97 First, defendant argues the prosecutor improperly gave his own opinion on

- 35 ­
Blumenberg’s credibility during his closing argument. He specifically challenges the following

remark: “I really believe that *** Blumenberg was very, very truthful when he sat here.” We

agree that this comment constitutes an impermissible expression of a personal belief as to wit­

ness credibility. However, the improper comment was isolated, and when viewed in context, it is

clear that the prosecutor also set forth an evidentiary basis for his remark. Immediately following

the challenged statement, the prosecutor stated as follows:

“[Blumenberg] talked about his addiction. He talked about his problems, He

talked about the events that led up to his arrest. He talked about [defendant’s] in­

volvement in it, and, interestingly, [defendant’s] involvement in it matched almost

to a T what [defendant] told you he did. The only part [defendant] doesn’t come

clean on is the fact that he knew good and well that Coleman fuel was being

brought up to make meth.”

¶ 98 Here, the prosecutor ultimately relied upon inferences fairly drawn from the evi­

dence presented when commenting on Blumenberg’s credibility, and any error in his initial ex­

pression of a personal belief was minor. Accordingly, the record fails to reflect that defendant

was substantially prejudiced and we find no reversible error.

¶ 99 Second, defendant asserts the prosecutor made statements during his closing and

rebuttal arguments that, again, improperly encouraged an “us-versus-them” mentality. We disa­

gree. Viewing the prosecutor’s remarks in context, we find they did not align or merge the prose­

cution with the jury and against defendant. Additionally, as stated, a prosecutor is permitted “to

urge the fearless administration of justice and the detrimental effect of crime.” Id. Thus, we find

no error in the prosecutor’s argument.

- 36 ­
¶ 100 Although defendant has raised a multitude of challenges based on his allegation of

prosecutorial misconduct, we find no merit to the majority of his claims. With respect to the er­

rors that did occur, we find they were minor and did not affect the fairness of his trial. Also, giv­

en that strong evidence was presented of defendant’s guilt, it is unlikely that a different outcome

would have occurred in their absence. Ultimately, no error occurred, either by itself or cumula­

tively, which warrants reversal of defendant’s conviction.

¶ 101 D. Ineffective Assistance of Counsel

¶ 102 Defendant also argues that his trial counsel provided ineffective assistance. Spe­

cifically, he maintains his counsel’s performance was deficient because he promised evidence in

his opening statement that he did not later present, elicited evidence that was harmful to defend­

ant, and failed to object to improper other-crimes evidence or instances of prosecutorial miscon­

duct. Defendant asserts he was prejudiced by his counsel’s errors and is entitled to a new trial.

¶ 103 To determine whether a defendant received ineffective assistance of counsel, we

apply the familiar two-prong test set forth by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668 (1984). People v. Cherry, 2016 IL 118728, ¶ 24, 63 N.E.3d 871. Un­

der that test, a defendant must establish (1) that his counsel’s performance “was objectively un­

reasonable under prevailing professional norms” and (2) “that there is a ‘reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been differ­

ent.’ ” Id. (quoting Strickland, 466 U.S. at 694). “Because a defendant must satisfy both prongs

of the Strickland test to prevail, the failure to establish either precludes a finding of ineffective

assistance of counsel.” Id.

¶ 104 Initially, defendant argues his counsel was ineffective for failing to fulfill promis­

- 37 ­
es he made during his opening statement. He notes that defense counsel indicated the jury would

hear certain testimony from Burge and Connell but that he failed to present the testimony of ei­

ther witness.

¶ 105 Although defense counsel’s failure to fulfill promises made during an opening

statement may constitute error, it does not constitute ineffectiveness per se and a defendant is

still required to show that his counsel’s error resulted in prejudice. People v. Winkfield, 2015 IL

App (1st) 130205, ¶ 20, 41 N.E.3d 641. “The test is not whether defense counsel fulfilled every

promise made during opening statements, but whether any error by counsel was so grave that had

the error not occurred, the result of the case would likely have been different.” Id.

¶ 106 In this instance, defendant cannot establish prejudice from his counsel’s failure to

present testimony from either Burge or Connell. First, during his opening statement, defendant’s

counsel asserted that Burge would testify that he had no contact with defendant around Novem­

ber 26, 2014, and indicated that Blumenberg might state otherwise. Defendant argues defense

counsel’s strategy was to show through Burge’s testimony that defendant was not present at

Burge’s trailer on November 26, 2014, when methamphetamine was manufactured. Here, alt­

hough Burge did not testify, the actual evidence presented supported defense counsel’s assertions

of no contact between the two men. Moreover, it was undisputed at trial that defendant was not

present at Burge’s trailer on November 26, 2014, when Burge and Blumenberg manufactured

methamphetamine. Accordingly, defendant was not prejudiced by the absence of Burge’s cumu­

lative testimony.

¶ 107 Second, defense counsel indicated that Connell would testify that he overheard

the telephone conversation between Blumenberg and defendant on the morning of November 26,

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2014, and that Blumenberg asked for Coleman fuel for his Coleman stove. Again, the evidence

that defendant maintains would have been presented through the missing witness testimony was

presented at trial and essentially undisputed. Specifically, Blumenberg admitted telling defendant

that the fuel he was asking for was for his Coleman stove. Thus, Connell’s testimony would also

have been cumulative, and we find no prejudice to defendant.

¶ 108 Defendant next argues his trial counsel was ineffective for asking open-ended

questions to Jacobs on cross-examination that elicited responses that improperly vouched for

Blumenberg’s credibility. Here, the challenged testimony from Jacobs occurred as defense coun­

sel was cross-examining him regarding his assertion that statements from criminal suspects be­

come more accurate over time. When viewing that line of cross-examination in its entirety and

Jacob’s challenged responses in context, we find neither error nor prejudice to defendant.

¶ 109 In particular, it was sound trial strategy for defense counsel to challenge testimo­

ny from Jacobs that suggested that the accuracy of Blumenberg’s statements increased over time.

Further, defense counsel did so effectively by suggesting that the same theory could be used to

characterize defendant’s statements and obtaining Jacobs’ acknowledgment that Jacobs had no

“way of being inside” Blumenberg’s head. Additionally, although Jacobs initially testified that

Blumenberg would have no reason to lie after being sentenced to prison, defense counsel’s ques­

tions forced him to admit that all of Blumenberg’s interviews occurred prior to Blumenberg’s

plea agreement. Jacobs further admitted that his belief that Blumenberg was truthful was “just a

hunch that [he] had” and that Blumenberg was told he could “help himself by cooperating with

the investigation.” Finally, on further questioning, Jacobs reiterated that it was his “hunch” that

Blumenberg had been truthful and he agreed that his belief that Blumenberg was trustworthy

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could be characterized as “speculation” or “instinct.”

¶ 110 Finally, defendant argues his counsel was ineffective for failing to object to the

majority of the “improper other-crimes evidence,” request limiting instructions contemporane­

ously with the admission of the other-crimes evidence, and object to any instance of prosecutori­

al misconduct. For reasons already discussed, many of defendant’s claims of error were not, in

fact, error. Further, to the extent that any error occurred there was no prejudice, either from any

error alone or cumulatively. The errors which did occur were minor, and the State presented

strong evidence of defendant’s guilt.

¶ 111 E. Posttrial Motion to Continue

¶ 112 Next, defendant argues the trial court erred by denying his posttrial counsel’s re­

quest for a continuance to investigate whether juror Smith testified falsely during voir dire. “A

trial court’s decision to grant or deny a motion to continue is a discretionary matter, and this

court will not set aside the trial court’s determination unless it amounts to an abuse of discre­

tion.” People v. Hillsman, 329 Ill. App. 3d 1110, 1118, 769 N.E.2d 1100, 1107 (2002). After re­

viewing the record in this case, we find no abuse of discretion.

¶ 113 Here, during voir dire, the trial court asked prospective jurors whether they knew

anything about the potential witnesses in the case. In response, Smith told the court that she

knew “the Burge boy,” and that she knew “the Connells and Blumenbergs real well.” She stated

she would “go to [a] restaurant” with “the Burge’s” and “have coffee with the grandparents.”

The following colloquy then occurred:

“THE COURT: Okay. All right. And is there anything

about that relationship *** or your acquaintanceship with those

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 family members that makes you feel you could not sit and make a

decision in this case today?

MS. SMITH: Just by hearsay, what I heard.

THE COURT: So, maybe you heard some things about that

particular matter, as well?

MS. SMITH: No, not this one.

THE COURT: Not this one, okay.

MS. SMITH: No.”

Defense counsel also questioned Smith as follows:

“MR. PARISH [(defense counsel)]: Okay. And *** you’ve heard nothing

else about any other witnesses, or my client, [defendant], or anybody else for that

matter that would leave you unable to make a fair and impartial ruling on all of

the evidence?

MS. SMITH: Right.

MR. PARISH: Is that right?

MS. SMITH: That’s right.”

¶ 114 Following trial, defendant’s posttrial counsel requested a continuance to investi­

gate Smith based on “a rumor” he heard from Prokuski, an excused juror who owned a restau­

rant. Counsel explained that Prokuski reported that Smith “often attended coffee at [Prokuski’s]

restaurant with relatives of” Blumenberg and Burge, that Prokuski heard Smith and others dis­

cussing “the case” following “the bust” of Blumenberg and Burge, and that defendant’s “name

was mentioned on more than one occasion” in Smith’s presence following his own arrest.

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¶ 115 We note that “[w]here a defendant does not learn of facts which might support a

finding of partiality by a juror until after a verdict, a post-trial evidentiary hearing may be neces­

sary.” People v. Towns, 157 Ill. 2d 90, 102, 623 N.E.2d 269, 275 (1993). “The defendant, how­

ever, *** bears the burden to introduce and offer specific, detailed[,] and nonconjectural evi­

dence in support of his position.” Id.

¶ 116 In this instance, we find Prokuski’s asserted statements were largely consistent

with Smith’s representations during voir dire and fail to indicate that Smith falsely answered any

questions. Both Prokuski’s report to defendant’s counsel and Smith’s answers during voir dire

indicate that Smith knew potential witnesses in defendant’s case or their family members and

that she had coffee with some of those family members at a restaurant. Additionally, similar to

Prokuski’s report that Smith and others discussed “the case” following “the bust” of Blumenberg

and Burge, during voir dire, Smith indicated that she heard “hearsay” impacting on Burge’s and

Blumenberg’s particular situations. Although Prokuski additionally asserted that, after defend­

ant’s arrest, his “name was mentioned on more than one occasion” in Smith’s presence, Smith

never denied hearing defendant’s name, only “things” specific to defendant’s “case.” Thus,

Prokuski related substantially the same information to defendant’s posttrial counsel as Smith

provided during voir dire.

¶ 117 Further, as noted by the State, “[a] juror’s exposure to publicity about a case is not

enough to demonstrate prejudice” and “[w]hat is essential is the juror’s ability to lay aside im­

pressions or opinions and return a verdict based upon the evidence presented in court.” People v.

Coleman, 168 Ill. 2d 509, 547, 660 N.E.2d 919, 938 (1995). Here, even if Smith was interviewed

by defendant’s counsel and acknowledged hearing defendant’s name in the context of a discus­

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sion about Blumenberg, Burge, and facts underlying the men’s criminal cases, bias or prejudice

does not automatically result. This is particularly true given that Smith asserted during voir dire

that she was able to make a fair and impartial ruling on the evidence presented at defendant’s

trial.

¶ 118 Finally, we disagree with defendant that it was error for the trial court to find that

issues as to Smith’s bias could have been followed up on at an earlier date. In reaching its deci­

sion to deny defendant’s motion to continue, the court stated as follows:

“If there was an issue in regard to her knowledge about other people who

were going to testify, it could have been followed up [on] at the trial or at any

time, and we’re now three months from the trial date, so I will deny the motion to

continue, and we will proceed today.”

Certainly, Smith’s answers during voir dire established that she knew witnesses in the case or

their family members. It also indicated that she had heard something about the underlying facts

relevant to Burge’s and Blumenberg’s criminal cases. As defendant’s case ultimately involved

the same underlying factual circumstances, it was not error for the court to find that the infor­

mation was available to defendant at the outset of his trial.

¶ 119 In this case, the facts presented by defendant did not support a finding that a juror

provided false answers during voir dire or that she was biased toward defendant. The cases cited

by defendant are distinguishable and do not warrant a finding of an abuse of discretion by the

trial court in denying the motion to continue

¶ 120 F. Excessive Sentence

¶ 121 Defendant argues on appeal that the sentence imposed by the trial court was ex­

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cessive. He challenges both his 30-year prison sentence and the fine imposed by the court. Be­

cause we reduce defendant’s conviction and remand for resentencing, we find it unnecessary to

address these contentions.

¶ 122 G. Reimbursement Fee

¶ 123 Finally, defendant argues on appeal that the $5000 fee imposed by the trial court

to reimburse his court-appointed counsel should be vacated. He contends the court abused its

discretion by imposing a maximum fee where he had no ability to pay and because the court ap­

peared “not to have known that the maximum fee it could impose was [$5000].”

¶ 124 The Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1(a) (West

2012)) provides as follows:

“Whenever *** the court appoints counsel to represent a defendant, the court may

order the defendant to pay to the Clerk of the Circuit Court a reasonable sum to

reimburse either the county or the State for such representation. In a hearing to

determine the amount of the payment, the court shall consider the affidavit pre­

pared by the defendant *** and any other information pertaining to the defend­

ant’s financial circumstances which may be submitted by the parties. Such hear­

ing shall be conducted on the court’s own motion or on motion of the State’s At­

torney at any time after the appointment of counsel but no later than 90 days after

the entry of a final order disposing of the case at the trial level.”

A reimbursement fee should not exceed $5000 where the defendant is charged with a felony. Id.

§ 113-3.1(b). Also, the trial court may, in its discretion, order that a defendant’s money bond be

used “in whole or in part to comply with any payment order entered.” Id. § 113-3.1(c). Further,

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“[t]he court may give special consideration to the interests of relatives or other third parties who

may have posted a money bond on the behalf of the defendant to secure his release.” Id.

¶ 125 Here, we find no abuse of discretion by the trial court. The record reflects it ap­

propriately conducted a hearing and considered relevant factors. As the State points out, in chal­

lenging the reimbursement on appeal defendant makes allegations that are clearly refuted by the

record. In particular, he contends defense counsel submitted a bill of $6741.50, and that the trial

court deemed that amount “unreasonably large.” In actuality, the court’s comments reflect that

defense counsel’s bill totaled $9911. The court found that amount unreasonable and reduced it to

$6471, before ordering a $5000 fee. Additionally, contrary to defendant’s assertion that the court

appeared not to know that $5000 was the maximum it could impose, the court expressly com­

mented it had statutory authority to order a reimbursement “up to [$5000] for a felony.”

¶ 126 III. CONCLUSION

¶ 127 For the reasons stated, we reduce defendant’s conviction to the offense of meth­

amphetamine conspiracy based on his participation in the manufacture of 100 or more grams but

less than 400 grams of a substance containing methamphetamine (720 ILCS 646/15(a)(2)(C)

(West 2012)), remand for resentencing, and otherwise affirm the trial court’s judgment.

¶ 128 Affirmed as modified; cause remanded.

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