People v. Howard

NOTICE
This Order was filed under 2022 IL App (4th) 200560-U FILED
Supreme Court Rule 23 and is April 26, 2022
not precedent except in the NO. 4-20-0560 Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Cumberland County
RICHARD LEE ALBERT, ) No. 19CF70
Defendant-Appellant. )
) Honorable
) Jonathan T. Braden,
) Judge Presiding.

JUSTICE HOLDER WHITE delivered the judgment of the court.
Justices Turner and Steigmann concurred in the judgment.

ORDER
¶1 Held: The appellate court affirmed, concluding (1) the trial court’s improper
admonishment pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1, 2012)
did not constitute plain error because the evidence against defendant was not
closely balanced and (2) defendant’s convictions for home invasion and
residential burglary did not violate the one-act, one-crime rule.

¶2 Following a September 2020 trial, a jury found defendant, Richard Lee Albert,

guilty of home invasion (720 ILCS 5/19-6(a)(2) (West 2018)) and residential burglary (id.

§ 19-3(a)). The jury acquitted defendant of battery (id. § 12-3(a)(1)). In November 2020, the

trial court sentenced defendant to 28 years’ imprisonment for home invasion to run concurrent to

a 10-year prison sentence for residential burglary.

¶3 Defendant appeals, arguing (1) the trial court plainly erred in admonishing

potential jurors under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), when it did not ask

every member of the jury whether they understood and accepted each of the principles
enumerated in the rule and (2) his convictions for home invasion and residential burglary, being

based upon the same physical act, violate the one-act, one-crime rule. We affirm.

¶4 I. BACKGROUND

¶5 In September 2020, the State filed a second amended information charging

defendant with (1) home invasion, in that defendant, knowingly and without authority, “entered

the dwelling place of another when Defendant knew that one or more persons were present and

intentionally caused an injury to a person within the dwelling place” (720 ILCS 5/19-6(a)(2)

(West 2018)); (2) residential burglary, in that defendant, knowingly and without authority,

“entered within the dwelling place of another with the intent to commit therein a theft” (id.

§ 19-3(a)); and (3) battery (id. § 12-3(a)(1)). The charges stemmed from an incident that

occurred on February 27, 2019.

¶6 A. Defendant’s Jury Trial

¶7 In September 2020, during voir dire, the trial court and the parties selected the

jury out of five separate panels. During the first panel, the court individually read the Illinois

Supreme Court Rule 431(b) (eff. July 1, 2012) principles to each prospective juror. However, the

court only asked prospective juror Breer, “Do you accept the Defendant is presumed to be

innocent of the charges against him?” The court failed to ask prospective juror Breer if he

“understood” the presumption of innocence. After the court finished questioning the first panel,

defense counsel asked the prospective jurors to raise their hands if they agreed that defendant

was not required to prove his innocence. Ultimately, prospective juror Breer served on the jury.

¶8 Subsequently, the trial court indicated for the remaining panels of prospective

jurors, it would read the Rule 431(b) principles to the group and then elicit individual responses.

The court then proceeded to appropriately examine the second panel. The court next examined

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the third panel of prospective jurors. The court read the Rule 431(b) principles to the prospective

jurors. However, the court did not give prospective juror Adam or prospective juror Cooper a

chance to respond to the question, “Do you understand and accept the Defendant’s choice not to

testify cannot be held against him?” Ultimately, prospective juror Adam served on the jury, but

prospective juror Cooper was excused. The court then examined the fourth and fifth panels of

prospective jurors.

¶9 Following voir dire, the trial commenced. The parties presented the following

relevant evidence.

¶ 10 1. Police Chief Keith Harris

¶ 11 Keith Harris, the chief of police for Greenup, Illinois, testified he received a

report that an incident occurred at Tip Carlen’s residence in Greenup around 9 p.m. on February

27, 2019. The next day, February 28, 2019, Chief Harris went to Carlen’s residence to

investigate the incident. When Chief Harris arrived at Carlen’s residence, Chief Harris observed

an injury to Carlen’s head. The trial court admitted, without objection, a photograph showing a

bruise on the top of Carlen’s head.

¶ 12 Chief Harris interviewed Carlen, who reported a burglary the night before at his

residence. Chief Harris testified Carlen told him the intruder “was wearing all black. He said he

had a black hood pulled down, and he said he was wearing some kind of, like a black mask or

whatever to conceal his identity up here but it was all black.” Chief Harris testified he provided

Carlen with a photographic lineup and “He looked at it real close. And his vision is not that

good. He just wasn’t able to identify the suspect.” Chief Harris testified defendant’s photograph

was in the lineup.

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¶ 13 After Chief Harris spoke with Carlen, he obtained a search warrant to search 101

West Cincinnati Street, defendant’s residence. Chief Harris testified that the residence at 101

West Cincinnati Street in Greenup was about a block from Carlen’s residence. Chief Harris

stated he knew where defendant lived because on February 17, 2019, about a week before the

incident at Carlen’s residence, defendant came to see him at the police station to ask him about

“burning and cleaning up” at his residence. Chief Harris testified that on February 17, 2019,

when defendant came to the police station, he wore a black jacket and hat.

¶ 14 Chief Harris testified that in executing the search warrant, on February 28, 2019,

police were looking for two major items—a Samsung flip phone and a black hoodie. After

searching the residence, police did not find the flip phone or a black hooded sweatshirt.

However, police found methamphetamine and syringes in the residence.

¶ 15 Chief Harris also spoke with defendant on February 28, 2019. Chief Harris

testified defendant denied having any involvement with the incident at Carlen’s residence.

Rather, Chief Harris testified defendant provided that on February 27, 2019, he had been using

methamphetamine at “the old Albert place[,]” south of Greenup and that he had been with Daniel

“Danny” Hires in Mattoon, Illinois. Chief Harris opined that it takes about 30 minutes to drive

from Mattoon to Greenup.

¶ 16 Chief Harris further testified that during the incident at Carlen’s residence, money

was stolen. When Chief Harris spoke with defendant, defendant had $23 or $24 in his

possession but said the money was from selling items and his parents helped him out. Chief

Harris spoke with defendant again on March 1, 2019, at the Cumberland County jail, where

defendant again admitted to using methamphetamine and showed his arms where he “shot

methamphetamine.”

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¶ 17 A few days later, Illinois State Police crime scene investigators analyzed the

crime scene at Carlen’s residence. The investigators processed a metal lockbox the intruder

picked up and shook when he entered the residence, but the investigators failed to locate any

deoxyribonucleic acid (DNA) or fingerprint evidence at the scene.

¶ 18 In September 2019, Danny Hires contacted Chief Harris and told him that

defendant “was contacting him to get with him to try to, to establish an alibi for the night of

February 27th, 2019.” Chief Harris testified that after Hires approached him about defendant,

Harris asked Hires to wear a recording device when he talked to defendant. On October 7, 2019,

Chief Harris filed an application for an order authorizing the use of an eavesdropping device,

which the trial court subsequently approved. On October 8, 2019, Chief Harris gave Hires the

recording device which was disguised as an ink pen. On October 10, 2019, Hires returned the

device with two different recordings taken on October 9, 2019.

¶ 19 2. Hubert “Tip” Carlen

¶ 20 Hubert Carlen, the victim, testified he goes by the nickname “Tip” and that he

was a World War II veteran who resided at 708 South Mill Street in Greenup for the last 22

years. Carlen testified that on the night of February 27, 2019, he was 99 years old. When asked

how his eyesight was in February 2019, Carlen stated, “I can’t see too good.” Carlen admitted

he could see shapes “pretty well” but he could not identify faces too well. As to his hearing,

Carlen testified, “Well, if I’m facing the person, I can hear pretty well. But otherwise not so

good.” However, Carlen stated he could recognize voices.

¶ 21 Carlen testified that around 9 p.m. on February 27, 2019, his doorbell rang or

someone knocked on his front door and he answered the door when “this guy in black, all

dressed in black, he just barged right in, you know, real quick.” Carlen testified the individual,

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once inside his residence, stated, “I want all your money.” Carlen responded, “What?” The

individual responded, “I want all the money you got.” Carlen testified he then looked on the

kitchen table for his billfold but it was not on the table. Carlen turned to face the individual who

then hit Carlen on the top of the head. After the individual hit Carlen, Carlen found some money

and gave it to the individual who then fled from the residence. Carlen testified that after the

individual left, he could not find his cell phone to call for help nor could he walk to a neighbor’s

house without the fear of falling.

¶ 22 Carlen testified he believed he had seen the intruder three or four days before the

incident on February 27, 2019. About three or four days before February 27, 2019, Carlen’s

doorbell rang around 9 p.m. Carlen testified he answered the door and a man introduced himself

saying, “I’m Richard Albert.” After the man introduced himself, he asked Carlen if he

“remember[ed] Ines and Chester Albert?” Carlen testified that he told the man he was familiar

with Chester and Ines, and Carlen continued to speak with the man, who he described as

“friendly.” Carlen stated that during the conversation, the man mentioned he recently moved

into Richard Hunt’s residence and he needed to clean it up because it was messy. Carlen also

testified that the man asked him for money, so Carlen gave him $20.

¶ 23 On cross-examination, Carlen admitted he did not know defendant’s name until

Chief Harris told him following the February 27, 2019, incident. However, on redirect

examination, the state’s attorney stated, “I’ll ask you a different way, Mr. Carlen. As you sit

here today, do you remember telling Mr. Harris that Mr. Albert had come to your house prior—

[.]” Before, the state’s attorney could finish his question, Carlen responded, “Yes.”

¶ 24 3. Pamela Kuchera

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¶ 25 Pamela Kuchera, Carlen’s neighbor and caretaker, testified that on February 28,

2019, she went over to Carlen’s residence and “he was shook up and pretty upset, had a big

bruise on his head.” Kuchera testified she went over to Carlen’s residence because he was not

answering his cell phone. Kuchera tried to find Carlen’s cell phone but was never able to locate

the phone.

¶ 26 4. Daniel Hires

¶ 27 Daniel Hires testified he had known defendant his whole life and he identified

defendant in court. Hires provided that in March 2019, defendant reached out to him about the

burglary at Carlen’s residence. Hires testified that around the same time, he was charged with

attempted murder in an unrelated case, which eventually was amended to aggravated battery with

bodily harm. Hires was also charged with a drug related charge in a separate case. Hires

admitted to being worried about going to prison because of the charges.

¶ 28 While his charges were pending, Hires reached out to Chief Harris and told him

that defendant asked Hires about being an alibi for him on the night of Carlen’s burglary. While

Hires testified that on February 27, 2019, he was not with defendant, on cross-examination, Hires

stated he could have been with defendant at some point that day because defendant was over at

his house all the time. Hires also provided that Chief Harris told him the State may look

favorably upon him if he wore an overhear device when he spoke with defendant. Hires testified

that on October 9, 2019, he used an overhear device in the form of a pen to record conversations

with defendant. The trial court admitted into evidence two recordings captured by the overhear

device, over objection, and the State played the recordings for the jury.

¶ 29 Hires testified the first recording contained a conversation between him and

defendant while they sat inside a vehicle outside his residence. Hires identified his voice and

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defendant’s voice in the recording. In the recording, Hires asked defendant about “the Tip

Carlen thing” because he did not know what to say if he was asked about an alibi. Defendant

then gave Hires a detailed rundown of their movements in Mattoon on the day of the Carlen

incident. Hires also brought up to defendant the things other people were saying happened to

Carlen that night, specifically, his injuries. Defendant told Hires, “If I was going to hurt the old

man, I would have hurt the old man.” Defendant also described what happened when he went to

Carlen’s front door on the night of the incident. Hires asked if Carlen tried to resist and

defendant responded, “No.” Hires also asked defendant whether thousands of dollars were taken

from Carlen’s house to which defendant responded, “There was $24.” The recording ended

when the two men exited the vehicle and went inside the residence.

¶ 30 Hires testified the second recording contained a conversation between him and

defendant that took place inside of his residence with his girlfriend, Debra Hagood, present.

Hires again identified his voice and defendant’s voice in the recording. In the recording, Hires

said, “Hey, Deb, just so you know, he did not hurt the old man. Tip Carlen didn’t get touched

one time.” In the background you hear someone in agreement say, “No.” Hires testified

defendant said, “No.” Then, Hires told Hagood it was not thousands of dollars taken but rather

$24 dollars snatched and gone. Defendant cut in to confirm only $24 was taken and that he

bought cereal and milk with the money.

¶ 31 Ultimately, Hires received probation for his aggravated battery with a deadly

weapon charge.

¶ 32 5. Debra Hagood

¶ 33 Debra Hagood, Hires’s girlfriend, testified that on October 9, 2019, she was

present at Hires’s residence when Hires and defendant talked about the Carlen burglary. Hagood

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heard defendant say he “didn’t hurt the old man.” Hagood also testified defendant “said that he

only got $24, that he bought milk and cereal.”

¶ 34 6. Sheriff Steve Maroon

¶ 35 Steve Maroon, Cumberland County Sheriff, testified that in his capacity as sheriff,

he ran the jail. Sheriff Maroon stated inmates could use the telephone “anywhere from 6:00 a.m.

to 10:00 p.m. on a daily basis.” Sheriff Maroon provided all inmate telephone calls were

recorded, except for conversations between inmates and their attorney. Sheriff Maroon also

provided inmates were informed that calls were recorded. Sheriff Maroon testified the recorded

phone calls are stored, after which the caller can be identified using a personal identification

number assigned to each inmate that purchases a phone card.

¶ 36 Sheriff Maroon testified that while defendant was an inmate, he purchased a

phone card. The State moved to admit and publish a portion of defendant’s telephone call

recordings through Sheriff Maroon. The trial court admitted into evidence defendant’s jailhouse

telephone calls, over objection, and the State played the recordings for the jury. Maroon

identified some of the telephone calls on the recordings. Specifically, Sheriff Maroon identified

conversations between defendant and an individual identified as “Tyler or TJ.” Sheriff Maroon

testified TJ’s real name was Christopher Sanders. Sheriff Maroon also stated he was able to

identify defendant’s voice on the telephone calls.

¶ 37 7. Christopher Sanders

¶ 38 Christopher Sanders testified he also goes by the name Tyler Jones or TJ for

short. Sanders stated he knew defendant and that he spoke with defendant over the telephone

while defendant was in the Cumberland County Safety and Detention Center. The State then

played a portion of defendant’s jailhouse telephone recordings. After listening to the recording,

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Sanders stated he believed his voice was on the recording. Sanders then testified that during the

telephone call, defendant talked about being with Sanders in late February. When asked if it was

possible for Sanders and defendant to have been together in late February, Sanders responded, “I

was in custody in Clark County Jail, sir.” Specifically, Sanders stated he was taken into custody

on January 18 and released on March 3.

¶ 39 Following Sanders’s testimony, the parties entered a stipulation that defendant

was not a peace officer.

¶ 40 8. Scott Frye

¶ 41 Scott Frye testified that on February 27, 2019, he lived in Mattoon at West Park

Plaza. Around 2 p.m. on February 27, 2019, Frye went to a residence at 33rd and DeWitt Street,

about 8 to 10 blocks from his house. Frye testified he saw defendant at the residence. In the late

afternoon or early evening, two friends picked Frye up from the residence and they went back to

West Park Plaza. When Frye left the residence at 33rd and DeWitt, defendant was still at the

residence. Frye testified that about an hour or so later, defendant came over to his house.

Defendant stayed at Frye’s house for about two to three hours. When asked what time defendant

left his residence, Frye stated, “I would say around 5:00 or 6:00 maybe, somewhere in there. It

was not too far before dark.” However, Frye could not testify as to defendant’s whereabouts

after he left his apartment. Frye did not know “with absolute certainty” where defendant was

between the hours of 8:30 and 9:30 on the night of February 27, 2019. Frye further testified he

never saw defendant drive a vehicle. After Frye testified, the trial court addressed defendant

outside the presence of the jury regarding whether defendant wanted to testify. Defendant

elected not to testify.

¶ 42 9. Jury Deliberations and Verdict

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¶ 43 A little over 20 minutes after the parties submitted the case to the jury, the jury

asked the trial court, “whether or not they can receive a transcript of the telephone

communications.” The jury did not specify which telephone call communication they were

requesting. The court submitted a written response to the jury stating, “There are no transcripts

of the telephone calls prepared or available as evidence.”

¶ 44 About 10 minutes later, the jury asked a second question. Specifically, the jury

“asked another question requesting if they could listen to the audio contained on People’s Exhibit

5, which were the recordings of the authorized overhear in this case that’s previously been

published to the jury.” Over defense counsel’s objection, the court provided the jury with a

laptop computer that contained the recordings. The court also submitted a written response to

the jury stating, “You have been provided a laptop computer with the audio files available on the

home screen. You are to use the laptop solely for the purpose of listening to the recordings you

have requested. You are prohibited from using the device or any other device to conduct any

outside research or investigation.”

¶ 45 A little over 30 minutes later, the jury asked a third question. Specifically, the

jury asked, “May we, the jury, have access to either a transcript or an audio recording of the

testimony of Tip Carlen and Pam Kuchera.” The trial court granted the request and submitted a

written response to the jury stating, “A transcript of the testimony of Hubert “Tip” Carlen and

Pam Kuchera will be provided to you within the next hour.” The court then provided the

transcripts to the jury.

¶ 46 Ultimately, the jury found defendant guilty of home invasion and residential

burglary. The jury acquitted defendant of battery.

¶ 47 B. Defendant’s Posttrial Motion and Sentencing Hearing

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¶ 48 On October 14, 2020, defendant filed a motion for acquittal notwithstanding the

verdict. In the motion, defendant argued, “[T]he acquittal for a lesser included offense

[(battery)] is an implied or actual acquittal of the greater offense, and that evidence presented at

trial was insufficient to prove him guilty beyond a reasonable doubt as to the Home Invasion

charge and that, accordingly, an order granting acquittal notwithstanding the verdict, as to the

Home Invasion charge is compelled in the interest of justice.” Following an October 29, 2020,

hearing, the trial court denied defendant’s motion, stating, “I do not believe that you have any

basis in Illinois law or under the United States Constitution to challenge these legally

inconsistent verdicts.”

¶ 49 At a November 5, 2020, sentencing hearing, the trial court sentenced defendant to

28 years’ imprisonment for home invasion to run concurrent to a 10-year prison sentence for

residential burglary.

¶ 50 This appeal followed.

¶ 51 II. ANALYSIS

¶ 52 On appeal, defendant argues (1) the trial court plainly erred in admonishing

potential jurors under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), when it failed to

ask every prospective member of the jury whether they understood and accepted each of the four

principles enumerated in the rule and (2) his convictions for home invasion and residential

burglary, being based upon the same physical act, violate the one-act, one-crime rule. We

review both issues in turn.

¶ 53 Defendant failed to raise both issues before the trial court and in a posttrial

motion, thus rendering the issues forfeited. People v. Kitch, 239 Ill. 2d 452, 460, 942 N.E.2d

1235, 1240 (2011). However, we may consider a forfeited claim where the defendant

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demonstrates a plain error occurred. Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). To prevail under the

plain-error doctrine, a defendant must first demonstrate a clear or obvious error occurred. People

v. Piatkowski, 225 Ill. 2d 551, 565, 870 N.E.2d 403, 411 (2003). If an error occurred, we only

reverse where (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

is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of

the judicial process, regardless of the closeness of the evidence.” Id.

¶ 54 A. Rule 431(b)

¶ 55 1. Clear or Obvious Error

¶ 56 Defendant argues the trial court committed clear error by failing to properly

admonish three potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1,

2012). Specifically, defendant contends the court failed to ask one prospective juror if he

understood the first legal principle under the rule. Defendant also contends the court failed to

allow two prospective jurors a chance to respond to whether they understood and accepted the

fourth legal principle under the rule. The State argues the trial court’s failure to properly

admonish three potential jurors pursuant to Rule 431(b) was arguable error or a typical trial

mistake rather than a breakdown in the adversarial system. The State asserts such error is

reviewed for an abuse of discretion. See People v. Rinehart, 2012 IL 111719, ¶ 16, 962 N.E.2d

444. We decline the State’s invitation to depart from the analysis traditionally undertaken when

determining whether an error occurred pursuant to the plain-error doctrine.

¶ 57 Accordingly, we turn to whether the trial court’s failure to properly admonish

three prospective jurors pursuant to Rule 431(b) resulted in a clear or obvious error. See

Piatkowski, 225 Ill. 2d at 565. We review de novo whether the court committed a clear or

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obvious error with respect to its compliance with Rule 431(b). See People v. Belknap, 2014 IL

117094, ¶ 41, 23 N.E.3d 325.

¶ 58 Under Rule 431(b),

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

a group, whether that juror understands and accepts the following

principles: (1) that the defendant is presumed innocent of the

charge(s) against him or her; (2) that before a defendant can be

convicted the State must prove the defendant guilty beyond a

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

evidence on his or her own behalf; and (4) that if a defendant does

not testify it cannot be held against him or her; however, no

inquiry of a prospective juror shall be made into the defendant’s

decision not to testify when the defendant objects.

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

opportunity to respond to specific questions concerning the

principles set out in this section.” Ill. S. Ct. R. 431(b) (eff. July 1,

2012).

¶ 59 Defendant relies on People v. Thompson, 238 Ill. 2d 598, 939 N.E.2d 403 (2010),

in support of his argument. In Thompson, the supreme court found the trial court failed to

comply with Rule 431(b), noting it entirely failed to address one of the principles and did not ask

the jurors if they both understood and accepted another principle. Thompson, 238 Ill. 2d at 607.

The supreme court pointed out that Rule 431(b) requires the trial court to “address each of the

enumerated principles” and to determine whether the jurors understood and accepted each of the

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principles. Id. The court further held the rule required “an opportunity for a response from each

prospective juror on their understanding and acceptance of those principles.” Id. Our case is

analogous to Thompson.

¶ 60 Here, the trial court asked prospective juror Breer, “Do you accept the Defendant

is presumed to be innocent of the charges against him?” However, the court failed to ask

prospective juror Breer if he “understood” the presumption of innocence Rule 431(b) principle.

Further, the court failed to give prospective juror Adam and prospective juror Cooper a chance to

respond to the fourth principle, “Do you understand and accept the Defendant’s choice not to

testify cannot be held against him?” As previously noted, defendant elected not to testify in this

matter. Thus, the court’s admonishments did not comply with Rule 431(b) and, therefore,

constituted clear error. Having found clear error, we turn to whether the error amounted to

first-prong plain error. We limit our inquiry to first-prong plain error because defendant makes

no argument regarding second-prong plain error.

¶ 61 2. First-Prong Plain Error

¶ 62 When considering whether a clear error violates the first prong of the plain-error

doctrine, “a reviewing court must decide whether the defendant has shown that the evidence was

so closely balanced the error alone severely threatened to tip the scales of justice.” People v.

Sebby, 2017 IL 119445, ¶ 51, 89 N.E.3d 675. To determine “whether the evidence adduced at

trial was close, a reviewing court must evaluate the totality of the evidence and conduct a

qualitative, commonsense assessment of it within the context of the case.” Id. ¶ 53 (citing

Belknap, 2014 IL 117094, ¶¶ 52-53). “A reviewing court’s inquiry involves an assessment of the

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

the witnesses’ credibility.” Id.

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¶ 63 Defendant argues the evidence is closely balanced and that the trial court’s failure

to ascertain whether each prospective juror understood and accepted each Rule 431(b) principle

before they were selected to serve on the jury threatened to tip the scales of justice against him.

Specifically, defendant asserts the evidence is closely balanced when considering the central

issue in the case, the identity of the intruder. Defendant asserts (1) no physical evidence linked

him to the home invasion and residential burglary, (2) a search of his residence produced nothing

that linked him to the home invasion and residential burglary, and (3) Carlen’s testimony

identifying defendant as the intruder was not conclusive where Carlen disclosed having poor

eyesight and hearing. Moreover, defendant asserts the closeness of the evidence is further

demonstrated by the jury’s three notes requesting additional materials during deliberations.

¶ 64 The State argues the evidence is not closely balanced where (1) Carlen identified

defendant as the intruder, (2) defendant made statements to both Hires and Hagood about the

incident at Carlen’s residence where he admitted taking money but denied hurting Carlen, and

(3) defendant asked more than one person to provide an alibi for him on the night of the home

invasion and residential burglary at Carlen’s residence. We agree with the State.

¶ 65 While police found no DNA or fingerprint evidence at the scene nor any physical

evidence—a Samsung flip phone or a black hooded sweatshirt—at defendant’s residence that

tied him to the incident at Carlen’s residence, the record shows defendant admitted to Hires on

an overhear device that he was involved in the incident at Carlen’s residence and took money

from Carlen. The State played two overhear recordings that contained conversations between

defendant and Hires about the incident at Carlen’s residence in February 2019. Hires identified

his voice and defendant’s voice in the recordings. Specifically, in the first recording, Hires asked

defendant about “the Tip Carlen thing” and defendant disclosed what happened during the

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incident at Carlen’s residence and that he did not hurt Carlen. Rather, defendant stated he only

took $24 from Carlen. In the second recording, defendant again asserted he did not hurt Carlen

and only took $24 from him. Hagood corroborated the second recording on the overhear device

and Hires’s testimony where she admitted being present when Hires and defendant talked about

the Carlen burglary. Hagood testified that defendant stated he did not hurt Carlen and that he

only took $24.

¶ 66 Further, the record shows defendant asked more than one person to provide an

alibi for him on the day of the incident at Carlen’s residence. Sanders, also known as TJ,

testified defendant called him and asked him if he would say they were together in late February

2019. When asked if it was possible for Sanders and defendant to have been together in late

February, Sanders responded, “I was in custody in Clark County Jail, sir.” The State also

submitted phone records from the Cumberland County Safety and Detention Center to

corroborate Sanders’s testimony about his conversation with defendant.

¶ 67 Chief Harris testified that when he spoke with defendant about his whereabouts

on February 27, 2019, defendant told Chief Harris he had been with Hires in Mattoon. However,

Hires told Chief Harris defendant asked him to provide an alibi for him on the night of the

incident at Carlen’s residence. While Hires testified that on February 27, 2019, he was not with

defendant, on cross-examination, Hires stated he could have been with defendant at some point

that day because defendant was over at his house all the time. Moreover, in one of the overhear

recordings, Hires asked defendant what to say if he was asked about an alibi on the day of the

incident at Carlen’s residence, and defendant responded with a detailed rundown of their

movements in Mattoon on that day. While Frye testified that he saw defendant leave his

residence in Mattoon around 5 p.m. or 6 p.m. on February 27, 2019, Frye admitted he could not

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testify to defendant’s whereabouts after he left his apartment and he did not know “with absolute

certainty” where defendant was between the hours of 8:30 and 9:30 on the night of February 27,

2019. Chief Harris testified it takes about 30 minutes to drive from Mattoon to Greenup.

¶ 68 To the extent defendant argues Carlen’s testimony was not reliable in identifying

him as the intruder, we find Carlen’s testimony is still compelling. Chief Harris testified Carlen

could not identify defendant in a photographic lineup. Carlen admitted he did not see that well

and he could only hear well if he was facing the person. However, Carlen testified he could

recognize voices. Carlen identified defendant as the same man who came to his residence and

spoke with him a few days before the incident. While it was not clear from Carlen’s testimony

whether he knew defendant’s name or if Chief Harris told him defendant’s name, Carlen’s

testimony that defendant asked for money during the February 27, 2019, incident and he gave

him some money is supported by defendant’s statements that he only took $24 from Carlen

during the incident.

¶ 69 Moreover, we reject defendant’s contention that the three questions submitted by

the jury during deliberations meant the evidence was close in the minds of the jury.

Notwithstanding the notes submitted to the court, we “cannot identify what occurred in the

minds of the individual jurors that led them ultimately to reach a consensus.” People v. Johnson,

408 Ill. App. 3d 157, 173, 945 N.E.2d 610, 624 (2010) (rejecting the “defendant’s invitation to

conclude the evidence was closely balanced based upon rote speculation about the course of

deliberations or the note from the jury”).

¶ 70 Evaluating the totality of the evidence and conducting a qualitative, commonsense

assessment, we conclude the evidence was not closely balanced. See Sebby, 2017 IL 119445,

¶ 53. Defendant’s statements on the overhear device were consistent with the testimony of Hires

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and Hagood. Further, both defendant’s statements and the testimony of Hires and Hagood

established defendant’s guilt, which was corroborated by other witness testimony. Moreover, we

cannot conclude that trial court’s failure to ascertain whether each prospective juror understood

and accepted each Rule 431(b) principle before they were selected to serve on the jury tipped the

scales of justice against defendant. Accordingly, where the evidence in this case was not closely

balanced, defendant fails to establish first-prong plain error. See Piatkowski, 225 Ill. 2d at 565.

¶ 71 B. One-Act, One-Crime Rule

¶ 72 Last, defendant argues his conviction for residential burglary must be vacated

because it was carved from the same physical act as his conviction for home invasion and thus

the convictions violate the one-act, one-crime rule. Defendant acknowledges he forfeited this

issue on appeal by not raising it in the trial court or in a posttrial motion but maintains we may

review his claim under the plain-error doctrine. The State does not contest plain-error review but

argues defendant’s convictions for residential burglary and home invasion do not violate the

one-act, one-crime rule where the convictions were not carved from the same physical act

because home invasion required the additional physical act of intentionally causing an injury to a

person within the dwelling place.

¶ 73 Accordingly, we examine whether a one-act, one-crime violation occurred. If a

one-act, one-crime violation occurred, it is reversible error under the second prong of the

plain-error doctrine. See People v. Coats, 2018 IL 121926, ¶ 10, 104 N.E.3d 1102 (citing People

v. Nunez, 236 Ill. 2d 488, 493, 925 N.E.2d 1083, 1086 (2010)). “Whether a violation of the rule

has occurred is a question of law, which we review de novo.” Id. ¶ 12.

¶ 74 Illinois courts follow a two-step analysis to determine whether a one-act,

one-crime violation has occurred. Id. (citing People v. Rodriguez, 169 Ill. 2d 183, 186, 661

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N.E.2d 305, 306-07 (1996)). “First, the court ascertains whether the defendant’s conduct

consisted of a single physical act or separate acts.” Id. “The King court defined ‘act’ as ‘any

overt or outward manifestation which will support a different offense.’ ” People v. Price, 2011

IL App (4th) 100311, ¶ 26, 958 N.E.2d 341 (quoting People v. King, 66 Ill. 2d 551, 566, 363

N.E.2d 838, 844-45 (1977)). The “one-act, one-crime” doctrine provides that a criminal

defendant “may not be convicted of multiple offenses when those offenses are all based on

precisely the same physical act.” Coats, 2018 IL 121926, ¶ 11 (citing King, 66 Ill. 2d at 566).

However, “Multiple convictions and concurrent sentences should be permitted in all other cases

where a defendant has committed several acts, despite the interrelationship of those acts.” King,

66 Ill. 2d at 566. As explained further in Rodriguez, a defendant can be convicted of multiple

offenses even when they share a common physical act, as long as there is an additional physical

act that can support a separate offense. Coats, 2018 IL 121926, ¶ 26 (citing Rodriguez, 169 Ill.

2d at 189). “If it is determined that the defendant committed multiple acts, the court then moves

to the second step and determines whether any of the offenses are lesser-included offenses.” Id.

¶ 12.

¶ 75 Courts apply the abstract elements approach to determine whether one charged

offense is a lesser-included offense. People v. Miller, 238 Ill. 2d 161, 938 N.E.2d 498 (2010).

Under the abstract elements approach, we compare the statutory elements of the two offenses.

Id. at 166. Where every element of one offense is contained in a second offense and the first

offense does not contain an element not included in the second offense, the first offense

constitutes a lesser-included offense of the second offense. Id. “If none of the offenses are

lesser-included offenses, then multiple convictions are proper.” Coats, 2018 IL 121926, ¶ 12.

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¶ 76 We first determine whether defendant’s conduct consisted of separate acts or a

single physical act. Defendant contends his residential burglary conviction was carved from the

same physical act as his home invasion conviction because they both were based on the same

unauthorized entry into Carlen’s residence. In support of his argument that his residential

burglary conviction and home invasion conviction are carved from the same physical act in

violation of the one-act, one-crime rule, defendant cites People v. McLaurin, 184 Ill. 2d 58, 106,

703 N.E.2d 11, 34 (1998).

¶ 77 In McLaurin, 184 Ill. 2d at 62-63, a jury found the defendant guilty of several

offenses including, inter alia, first degree murder, home invasion, aggravated arson, and

residential burglary. The defendant’s conduct included entering the victim’s residence, tying the

victim up, and setting the victim on fire. Id. at 63-69. On appeal, the defendant asserted several

one-act, one-crime violations. Id. at 103-07. The supreme court found the defendant’s

convictions for murder and home invasion could stand because, although the two offenses shared

the common act of setting the fire, the additional physical act of unlawfully entering the dwelling

of the victim supported the home invasion conviction. Id. at 105. However, the court found the

defendant’s convictions for home invasion and residential burglary had been carved from the

same physical act of the defendant’s entering the dwelling of the victim and vacated the

residential-burglary conviction and sentence. Id. at 106. Further, the court found the aggravated

arson and murder convictions were carved from the same physical act of starting the fire and

vacated the aggravated arson conviction and sentence. Id. at 107.

¶ 78 The supreme court in Coats further explained the McLaurin holding as follows:

“[O]ur rationale is evident from reviewing the defendant’s conduct

in relation to all of the convictions. Under the circumstances, not

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 only did the offense of residential burglary share the common act

of unlawful entry [with home invasion], there was no additional act

that could support a separate offense because the act of setting the

fire had already been attributed to the murder conviction.

[Citation.] Similarly, the aggravated arson conviction and the

murder conviction were both carved from precisely the same

physical act of setting the fire, and there was no additional physical

act that could support the separate aggravated arson offense.

Accordingly, under one-act, one-crime principles, the defendant

was properly convicted of two offenses for two separate physical

acts—the unlawful entry and the setting of the fire.” (Emphasis

added.) Coats, 2018 IL 121926, ¶ 20.

We find defendant’s case is distinguishable from McLaurin, where defendant’s home invasion

conviction included the additional physical act of “intentionally causing an injury to a person

within the dwelling place[,]” which could not be attributed to another offense.

¶ 79 Here, the jury convicted defendant of home invasion where defendant, knowingly

and without authority, “entered the dwelling place of another when Defendant knew that one or

more persons were present and intentionally caused an injury to a person within the dwelling

place.” The jury also convicted defendant of residential burglary where defendant, knowingly

and without authority, “entered within the dwelling place of another with the intent to commit

therein a theft.” While defendant’s convictions for home invasion and residential burglary

shared the same physical act of entering the dwelling place of another, the home invasion offense

required the additional physical act of “intentionally caus[ing] an injury to a person within the

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dwelling place.” Defendant’s residential burglary offense did not require the additional physical

act of “intentionally caus[ing] an injury to a person within the dwelling place.” Therefore, we

find defendant’s convictions for home invasion and residential burglary were not carved out of a

single physical act.

¶ 80 On appeal, defendant makes no argument regarding the second step analysis

required after a finding that defendant committed multiple acts. Even so, we note that under the

abstract elements approach, residential burglary is not a lesser-included offense of home

invasion. Specifically, residential burglary requires that defendant enter the residence with the

intent to commit therein a theft, while home invasion does not. Unlike residential burglary,

home invasion requires defendant to knowingly enter a dwelling place that he knows or has

reason to know someone is present in. Accordingly, we conclude defendant’s convictions for

both home invasion and residential burglary do not violate the one-act, one-crime rule. Thus,

defendant fails to demonstrate a clear or obvious error to support his contention of plain error.

¶ 81 III. CONCLUSION

¶ 82 For the reasons stated, we affirm the trial court’s judgment.

¶ 83 Affirmed.

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