People v. Warren

2022 IL App (1st) 200297-U
No. 1-20-0297
Order filed May 11, 2022
Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 CR 4941
)
JOSIAH WARREN, ) Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court.
Presiding Justice Gordon and Justice McBride concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for aggravated unlawful use of a weapon over
his challenges to the admission of gang evidence, the effectiveness of counsel
regarding the admission of that evidence, and alleged misconduct during the State’s
opening statement and closing argument.

¶2 Following a jury trial, defendant, Josiah Warren, was found guilty of aggravated unlawful

use of a weapon (AUUW) and sentenced to one year in prison. On appeal, defendant contends that

the trial court should have excluded evidence that he possessed a firearm because of a gang dispute
No. 1-20-0297

as unfairly prejudicial under Illinois Rule of Evidence 403 and as improper expert opinion

testimony, and that counsel was ineffective for failing to object to the gang evidence. Defendant

also argues that he was denied a fair trial because the State’s opening statement and closing

argument were improper. For the following reasons, we affirm.

¶3 I. BACKGROUND

¶4 Defendant was charged with 10 counts of AUUW. 1 Relevant here, count I alleged that, on

March 15, 2019, defendant knowingly carried an uncased, loaded, and immediately accessible

firearm on his person when he had not been issued a valid concealed carry license or Firearm

Owner’s Identification (FOID) card (720 ILCS 5/24-1.6(a)(1)/(3)(A-5)(C) (West 2018)). Count

VII alleged that he knowingly carried a firearm on his person when he had been adjudicated a

delinquent minor due to his conviction for aggravated robbery in a 2013 case (720 ILCS 5/24-

1.6(a)(1)/(3)(D) (West 2018)).

¶5 Prior to trial, the State moved in limine to admit defendant’s postarrest statement to police.

After being advised of his Miranda rights, defendant told police that

“he had the gun for the ops. That he is into it with the guys from 21st and St. Louis.

And he was then shown the gun and told the officers he bought it. He then asked

the officers if he could – if they could give him his little gun back in exchange for a dirty

gun.”

Defendant did not object to the admission of his statement in general but indicated that he “might

have an objection” to how police witnesses would define “ops” and “dirty.” 2 The State indicated

1
The State nol-prossed all but two counts prior to trial.
2
The report of proceedings spells the term referring to opposing gang members as both “ops” and
“opps.” Hereafter, we will spell it as “opps” for consistency.

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that police officer witnesses would testify that “opps” meant “opposing gang members” and “dirty”

meant “a gun that has been used in the commission of a homicide.” The court allowed this

definition of “opps,” but did not allow police witnesses to define a “dirty gun” as only being a

firearm involved in a homicide.

¶6 The State’s opening statement began as follows:

“In our society, we all have to abide by certain rules. We learned these rules as

children. They follow most aspects of our lives.

We may not always like these rules, but they help keep us safe and they maintain

order, especially when they involve possession of a dangerous weapon like a gun. These

rules are specific, and only qualified individuals are allowed to have guns. This defendant

is not one of those people qualified to have a firearm.

We expect the evidence to show that the defendant doesn’t care about the rules. He

doesn’t need a FOID card. He doesn’t need a concealed carry license. He doesn’t care about

having those things.

The defendant didn’t just break the rules in this case. He broke the law.”

The State then summarized the expected testimony and explained that, at the conclusion of the

trial, it would ask the jury to find defendant guilty of “unlawfully possessing a firearm.”

¶7 Chicago police officer Michael Callahan testified that he was on duty, in uniform, and

driving a police vehicle with his partners, Officers Murphy and Meseck, on March 15, 2019. At

approximately 11:16 a.m., Callahan was driving south on South Lawndale Avenue, approaching

the intersection with West Douglas Boulevard. He saw defendant, whom he identified in court,

and another person walking north on the east sidewalk of Lawndale. Callahan stopped and exited

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his vehicle to ask defendant questions about a murder that occurred two and a half weeks prior.

Defendant “grabbed on his jacket, turned and began running southbound on the sidewalk.” Based

on Callahan’s experience, defendant grabbing his side suggested that he was holding a firearm. As

defendant ran away, Callahan saw “the butt of a handgun sticking out of the jacket,” so he drew

his own firearm.

¶8 Callahan and Murphy chased defendant on foot. When defendant crossed Douglas

Boulevard, he put his hands in the air and Callahan ordered him to stop, but defendant continued

running. Murphy stopped on Douglas Boulevard because Callahan told him that he believed that

defendant dropped a firearm there. Callahan continued chasing defendant on foot. Defendant ran

one block east to Millard Avenue and stopped when Meseck blocked his path with the police

vehicle. 3 Meseck handcuffed defendant and conducted a patdown search of him. Callahan returned

to Douglas Boulevard and found a semiautomatic handgun in the parkway, near where he saw

defendant raise his hands as he was running. Callahan recovered the firearm, its magazine, and a

round from the chamber. Murphy inventoried the firearm.

¶9 At the police station, Murphy advised defendant of his Miranda rights. Defendant indicated

that he understood his rights and agreed to speak with the officers. Callahan asked defendant why

he had the firearm, and defendant said, “I have it because I am into it with the guys from 21st and

St. Louis.” Defendant described “the guys from 21st and St. Louis” as “opps,” which is “[s]treet

language for opposition, opposition being rival gang members.” Callahan testified that

3
The report of proceedings misspells the name of this street as “Mallard.”

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No. 1-20-0297

“I can’t remember if – the 21st and St. Louis area is the Danny Mob Vice Lords. I don’t

remember if the defendant said the Danny Mob guys or just the guys from and I just

assumed it was the guys from – the Danny Mob from 21st and St. Louis.”

Defendant asked if Callahan “could give him his little gun back” and said that “he would get

[Callahan] a dirty gun.” Callahan then showed defendant the firearm that he recovered and asked

defendant where he got it. Defendant said that he bought it. Callahan identified the firearm, its

magazine, and ammunition. The State moved these items into evidence, along with an overhead

map of the area near Douglas and Lawndale.

¶ 10 Officers William Murphy and Jack Meseck testified that they were on duty and riding in a

police vehicle with Callahan on March 15, 2019. Both officers testified consistently with

Callahan’s account of the incident. Meseck did not recover anything from defendant’s person when

he searched defendant. Meseck identified the firearm and ammunition that he and Callahan

recovered in the parkway of Douglas Boulevard after defendant was arrested. Murphy testified

that, at the police station, he advised defendant of his Miranda rights and defendant indicated that

he understood them. Murphy showed defendant the firearm that the officers recovered on Douglas

and asked defendant where he got it. Defendant said that he bought it. Defendant also said that “he

had the gun for the opps and he was into it with a gang from 21st and St. Louis area.” Defendant

“wanted to know if he could get his old gun back in exchange for a dirty one.”

¶ 11 Sergeant Terrance Pratscher testified that he was on duty, in uniform, and driving a marked

police vehicle on March 15, 2019. At approximately 11:15 a.m., he responded to a call of a foot

chase near Douglas and Lawndale. As Pratscher approached the area, he saw a man running south

across Douglas, pursued by one officer on foot, as well as an unmarked police vehicle. Pratscher

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No. 1-20-0297

parked his vehicle and heard over the radio that officers had detained a person. He encountered

Callahan and Murphy in the parkway of Douglas Boulevard. Callahan said, “[I]t’s got to be right

there,” and pointed at the parkway. Pratscher saw a firearm in the grass of the parkway, which

Callahan recovered. The State moved into evidence a video recording from Pratscher’s body

camera. The video depicts two men in civilian clothing, whom Pratscher identified as Callahan

and Murphy, walking around a grassy area between two streets. One of the men recovers a black

handgun from the grass near the curb and appears to eject its magazine and one round. Pratscher

testified that was “the recovery of the handgun as [he] observed it.”

¶ 12 The parties stipulated that defendant had not been issued a valid FOID card or concealed

carry license as of March 15, 2019, and that he had previously been adjudicated a delinquent minor.

¶ 13 Defendant testified that, on March 15, 2019, he was walking on Lawndale with a friend

when an unmarked police vehicle stopped in front of him. A police officer exited and said that

defendant had an “investigation alert” and that he wanted to ask defendant about a homicide.

Defendant denied that he had a firearm. He ran away from the officer with his hands up because

he does not trust police and is terrified of them. As defendant was running, one of the officers told

him to freeze, so defendant turned around and said, “[D]on’t shoot.” The officer searched

defendant and asked him “where the f*** gun at;” defendant responded that he did not have

anything. The officers then handcuffed defendant and transported him to a police station.

Defendant did not tell police that he had a firearm, that he bought a firearm, that he was “into it

with some other gang,” or that he would exchange the firearm for any reason.

¶ 14 In closing, the State first discussed FOID card and concealed carry license requirements

for possessing a firearm, as well as the fact that an adjudication of delinquency for a crime that

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No. 1-20-0297

would have been a felony disqualifies one from possessing a firearm. The State then addressed the

instructions on the elements of AUUW, and the evidence establishing that defendant possessed a

firearm. It then argued that:

“[A] responsible gun owner would keep a gun like this in some kind of holster,

something that would secure it to your waste [sic] or your body in a way that it is not going

to be flapping around, falling out, accidentally pressing the trigger. That’s what a

responsible gun owner would do.

***

Ladies and gentlemen, from the moment the defendant locked eyes with Officer

Callahan, he has been avoiding responsibility for his decision to carry a loaded pistol on

the streets of Chicago.”

¶ 15 During deliberations, the jury asked the court six questions via notes. The jury asked (1) to

see police policy regarding how officers should record confessions, (2) whether there was a police

report regarding the officers’ interview of defendant, (3) to review the transcript of Callahan’s

testimony that he saw the firearm in defendant’s jacket pocket, (4) for additional instructions on

circumstantial evidence, (5) whether the reasonable doubt standard applied to count I, and (6)

whether a reasonable inference was the same as reasonable doubt. After the court answered these

questions, the jury found defendant guilty on both counts.

¶ 16 Defendant filed a motion for new trial, which argued in relevant part that “[t]he Assistant

State’s Attorney made prejudicial, inflammatory and erroneous statements in closing argument

designed to arouse the prejudices and passion of the jury, thereby prejudicing the defendant[’]s

right to a fair trial.” At the hearing on that motion, defendant only argued that the State failed to

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No. 1-20-0297

prove his guilt beyond a reasonable doubt. The court denied defendant’s motion for a new trial,

merged the counts, and sentenced defendant to one year in prison. Defendant filed a motion to

reconsider his sentence, which was denied.

¶ 17 Defendant timely appealed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, defendant argues that the trial court erred in admitting gang evidence, that his

counsel was ineffective for failing to object to the gang evidence, and that he was denied a fair

trial because certain remarks during the State’s opening statement and closing argument were

improper.

¶ 20 The State maintains that defendant has forfeited his challenges to the admission of gang

evidence, opening statement, and closing argument. We agree. To preserve an issue for review on

appeal, a defendant must make an objection during trial and raise the issue in a posttrial motion.

People v. Sebby, 2017 IL 119445, ¶ 48. As explained further below, it appears that defendant

objected to the admission of the portion of his statement that referred to “opps” and how police

witnesses would define that term, but he did not object to Callahan’s identification of the “opps”

at 21st and St. Louis as Danny Mob Vice Lords. More importantly, defendant did not raise any

arguments regarding gang evidence in his motion for a new trial. He has forfeited all challenges to

the admission of gang evidence. See id. Similarly, defendant did not object during the State’s

opening statement or initial closing argument.4 His motion for a new trial challenged the State’s

closing argument, but it did not mention opening statement. Defendant did not take the necessary

4
Defendant made one objection during the State’s rebuttal closing argument, which the court
sustained. However, the State’s rebuttal closing argument is not at issue in this appeal.

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No. 1-20-0297

steps to preserve the admission of gang evidence and the propriety of the State’s opening statement

and closing argument for appeal, so he has forfeited those issues. See id.

¶ 21 Defendant acknowledges that he forfeited these issues but asks us to review them for plain

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

brought to the attention of the trial court.” Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). We can review

forfeited claims (1) “when a clear or obvious error occurred and the evidence was so closely

balanced that the error alone threatened to tip the scales of justice against the defendant,” or (2)

“when a clear or obvious error occurred, and the error is so serious that it affected the fairness of

the defendant’s trial and challenged the integrity of the judicial process.” People v. Moon, 2022 IL

125959, ¶ 20 (not yet released for publication and subject to revision or withdrawal) (citing People

v. Herron, 215 Ill. 2d 167, 186-87 (2005)). In this case, defendant only asserts first-prong plain

error, i.e., he claims that the evidence was closely balanced. Defendant has the burden to

demonstrate plain error. See id. (citing Herron, 215 Ill. 2d at 187). The first step of plain error

review is to determine whether a clear or obvious error occurred. Id. ¶ 22 (citing People v. Sims,

192 Ill. 2d 592, 621 (2000)).

¶ 22 Defendant first contends that the trial court erred in admitting the portion of his postarrest

statement that referred to “opps,” in allowing the officers to define “opps” as opposing gang

members, and in allowing Callahan to testify that the “opps” at 21st and St. Louis were members

of the Danny Mob Vice Lords gang, specifically. Defendant also argues that counsel was

ineffective for failing to object to the admission of gang evidence.

¶ 23 Defendant argues that the trial court should have excluded his statement’s reference to

“opps” and the officers’ testimony that “opps” are opposing gang members as unfairly prejudicial

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No. 1-20-0297

under Rule 403. Evidence is generally admissible if it is relevant. Ill. R. Evid. 402 (eff. Jan. 1,

2011). Evidence is relevant if it has any tendency to make any fact of consequence more probable

or less probable than it would be without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011).

However, relevant evidence may be excluded if its probative value is substantially outweighed by

the danger of unfair prejudice. Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 24 In general, gang evidence is admissible to show motive for an otherwise inexplicable act

or common purpose or design. People v. Guerrero, 2020 IL App (1st) 172156, ¶ 41 (citing People

v. Smith, 141 Ill. 2d 40, 58 (1990)). However, “street gangs are regarded with considerable

disfavor,” so there may be strong prejudice against street gangs in metropolitan areas. People v.

Pikes, 2013 IL 115171, ¶ 25. “[E]vidence indicating a defendant is a member of a gang or involved

in gang-related activity is admissible only where there is sufficient proof that membership or

activity in the gang is related to the crime charged.” Id. As with other evidence, before gang

evidence is admitted, the trial court must determine that the gang evidence is relevant and that its

probative value is not substantially outweighed by its prejudicial effect. People v. Johnson, 208

Ill. 2d 53, 102 (2003); People v. Morales, 2012 IL App (1st) 101911, ¶ 40. We review the trial

court’s evidentiary rulings for an abuse of discretion. People v. Talbert, 2018 IL App (1st) 160157,

¶ 28. We will only reverse if the trial court’s decision was fanciful or arbitrary, or if no reasonable

person would agree with it. Id. We will not find an abuse of discretion if reasonable minds could

differ about the admissibility of the evidence. Id.

¶ 25 We find that the trial court did not commit clear or obvious error in admitting defendant’s

statement that he possessed the firearm because of a conflict with opposing gang members.

Defendant’s possession of a firearm was an element of AUUW (see 720 ILCS 5/24-1.6(a)(1) (West

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No. 1-20-0297

2018)), and whether he possessed a firearm was in dispute. The State’s theory was that defendant

had a firearm in his jacket, which he dropped in the parkway of Douglas Boulevard while running

from police. Defendant denied that he possessed a firearm. Defendant’s statement established that

he had a motive for possessing a firearm because of a conflict with rival gang members in the

area. 5 In turn, that motive for having a firearm made it more likely that defendant did, in fact,

possess a firearm on March 15, 2019. The gang evidence was relevant.

¶ 26 Furthermore, the probative value of this evidence was not outweighed by the danger of

unfair prejudice. The State did not focus on this issue. The gang evidence was only briefly

mentioned during closing argument. There are no indications that the jury focused on this issue

during deliberation. Of the six questions that the jury asked the trial court, none concerned the

gang evidence. On the contrary, the jury’s notes suggest that the jury carefully considered the

evidence and the instructions and did not decide this case based on prejudice or emotion.

Moreover, the jury heard defendant deny that he was involved in a gang dispute, or that he told the

officers as much. Although the gang evidence likely resulted in some prejudice to defendant, the

record does not support his claim that that evidence “flamed the jury’s hatred and fear of gangs.”

We find that the court did not commit clear or obvious error in admitting gang-related evidence of

defendant’s motive for possessing a firearm.

¶ 27 Defendant argues that the State could have established his motive for possessing a firearm

in a less prejudicial way by characterizing his dispute with people at 21st and St. Louis as “a

neighborhood conflict” rather than a gang conflict with “opps.” That may have been a less

5
We take judicial notice of the fact that, according to Google Maps, 21st and St. Louis is
approximately seven blocks from where the officers first saw defendant at Douglas and Lawndale. See
People v. Davila, 2022 IL App (1st) 190882, ¶ 29 (not yet released for publication and subject to revision
or withdrawal) (citing People v. Clark, 406 Ill. App. 3d 622, 632-34 (2010)).

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No. 1-20-0297

prejudicial approach, but it would have undermined the probative value of defendant’s statement.

It was proper for the State to demonstrate defendant’s gang involvement through his own statement

(see People v. Matthews, 299 Ill. App. 3d 914, 923 (1998) (the State can demonstrate gang

involvement through a defendant’s own admission)), which referred to “opps.” The officers’

explanation that “opps” meant opposing gang members was necessary to put defendant’s statement

into context for the jury. Defendant possessed a loaded firearm because rival gang members were

nearby. In addition, the cases that defendant cites are distinguishable and do not compel reversal.

People v. Hoerer, 375 Ill. App. 3d 148 (2007) did not involve gang evidence at all, and People v.

Joya, 319 Ill. App. 3d 370 (2001) involved the use of gang evidence to prove common design, not

motive. Accordingly, we find no clear or obvious error in the trial court’s admission of the portion

of defendant’s postarrest statement referring to “opps” or in allowing police witnesses to testify

that “opps” means rival gang members.

¶ 28 Defendant also contends that Callahan was not qualified as an expert, so he should not have

opined that “the guys from 21st and St. Louis” were members of the Danny Mob Vice Lords gang.

Generally, a police officer’s testimony regarding gang activity must qualify as an expert opinion.

Matthews, 299 Ill. App. 3d at 922. A witness qualifies as an expert if, “ ‘because of his skill,

training, or experience, he is better able to form a more accurate opinion as to the matter under

consideration than is an ordinary person.’ ” People v. Clifton, 342 Ill. App. 3d 696, 707 (2003)

(quoting People v. Ayala, 208 Ill. App. 3d 586, 593 (1990) (discussing police testimony about

gang activity)). Specialized formal training is not necessary for a witness to qualify as an expert;

the witness’s experience alone may be sufficient. Id. So long as the expert opinion testimony is

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based on information “ ‘of a type reasonably relied upon by experts in the field,’ ” it is proper. Id.

(quoting People v. Jackson, 145 Ill. App. 3d 626, 634 (1986)).

¶ 29 The only evidence of Callahan’s qualifications was that he had been a police officer for 10

years and attended the police academy. We cannot say that Callahan was qualified to testify as an

expert on gangs. But, regardless of whether he was qualified, the record is not clear that Callahan

expressed an opinion at all. He testified:

“Q. Did the defendant refer to the guys from 21st and St. Louis as anything in

particular?

A. I can’t remember if – the 21st and St. Louis area is the Danny Mob Vice Lords.

I don’t remember if the defendant said the Danny Mob guys or just the guys from and I

just assumed it was the guys from – the Danny Mob from 21st and St. Louis.”

We cannot say that the admission of this testimony constituted clear or obvious error.

¶ 30 Even if Callahan was improperly opining that “the guys from 21st and St. Louis” were

Danny Mob Vice Lords, the admission of that testimony did not constitute first-prong plain error

because the evidence was not closely balanced. In evaluating whether the evidence was closely

balanced, we must make a qualitative, commonsense assessment of all the evidence within the

context of the case. Sebby, 2017 IL 119445, ¶ 53. We focus on the evidence of the elements of the

charged offenses and any evidence regarding the witnesses’ credibility. Id. In this case, there was

no dispute that defendant did not have a valid FOID card or concealed carry license, or that he had

been adjudicated a delinquent minor. The only element of AUUW that was in dispute was

defendant’s possession of a firearm. To establish that element, the State introduced defendant’s

admission to possessing the firearm, the firearm itself, the testimony of three officers who found

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the firearm in the parkway of Douglas Boulevard shortly after defendant ran through that area, and

a body camera video depicting the officers’ recovery of the firearm. This case was not closely

balanced. Cf. People v. Naylor, 229 Ill. 2d 584, 607 (2008) (evidence was closely balanced where

both sides offered testimony supporting different, plausible versions of events and no extrinsic

evidence corroborated or contradicted either version).

¶ 31 We disagree with defendant’s contention that the jury’s questions somehow convert the

evidence to closely balanced. The jury’s questions indicate that they were paying close attention

to the evidence and the instructions. The notes do suggest that the jury was specifically interested

in Callahan’s testimony about seeing the firearm in defendant’s jacket and how defendant’s

postarrest statement might have been documented. However, we need not extrapolate those notes

to a conclusion that the jury did not believe Callahan or the officers’ testimony about what

defendant said at the police station. See People v. Nugen, 399 Ill. App. 3d 575, 584 (2010); see

also People v. Vasquez, 368 Ill. App. 3d 241, 251 (2006) (evidence not closely balanced despite

jury note indicating deadlock). Just because a jury thinks that certain evidence is important does

not mean that the jury is skeptical of that evidence. We also note that the jury’s deliberations were

relatively short at approximately two and a half hours. Cf. People v. Walker, 211 Ill. 2d 317, 326,

342 (2004) (evidence closely balanced where jury requested a witness’s testimony and deliberated

for two days).

¶ 32 Defendant cites People v. Lee, 2019 IL App (1st) 162563, in support of his claim that the

evidence was closely balanced. Lee is distinguishable in several respects. First, Lee was a

credibility contest between police witnesses and the defendant, with no corroborating evidence

supporting either side’s version of events. Lee, 2019 IL App (1st) 162563, ¶ 70. As explained

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above, the case before us involved extrinsic evidence that corroborated parts of the State’s theory,

and no corroborating evidence of defendant’s theory. That is, this case was not a pure credibility

contest. Second, in Lee, the jury sent out multiple notes indicating that they were deadlocked and

deliberated for nine hours over two days. Id. ¶ 71. By contrast, in this case, the jury never indicated

that they were deadlocked and deliberated for approximately two and half hours on one day. Lee

offers little guidance under the facts in this case. Accordingly, we do not find plain error regarding

the trial court’s admission of gang evidence.

¶ 33 Defendant next argues that counsel rendered ineffective assistance by failing to object to

the admission of gang evidence. We review trial counsel’s performance under the two-part test of

Strickland v. Washington, 466 U.S. 668 (1984). People v. Domagala, 2013 IL 113688, ¶ 36. To

prove that counsel was ineffective, a defendant must show that (1) counsel’s performance fell

below an objective standard of reasonableness and (2) counsel’s errors prejudiced the defendant.

Id. Prejudice means a reasonable probability that the outcome of trial would have been different.

Id. Upon review, we are highly deferential to counsel’s decisions of trial strategy, and the

defendant must overcome a strong presumption that counsel’s trial strategy was sound. People v.

Manning, 241 Ill. 2d 319, 334 (2011). If a defendant fails to establish either prong of the Strickland

test, his claim of ineffective assistance fails. People v. Colon, 225 Ill. 2d 125, 135 (2007).

¶ 34 Defendant’s claim that counsel did not object to the admission of gang evidence is not

accurate. During pretrial argument on the State’s motion in limine, the following exchange

occurred:

“THE COURT: I am going to allow the State [to] introduce any proper evidence

that’s admissible pursuant to the rules of evidence.

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From what you have told me, this appears to be a statement of the defendant that

would be properly admitted.

There is no objection voiced by the defense that would preclude the statement from

being admitted.

[THE STATE]: Thank you, Your Honor.

[DEFENDANT]: Well, Judge, there is Paragraph 2 though of it which is – testify

where the State asks for Office Callahan to testify with regards to his understanding of

op[p]s and dirty.

That I might have an objection to just as it’s speculative.”

Counsel did object to police witnesses identifying “opps” as rival gang members. The trial court

interpreted counsel’s concern as an objection because, shortly thereafter, the court specifically

ruled that it was “reasonable” for the State’s witnesses to define “opps” as opposing gang members.

But even if counsel failed to object, the admission of this evidence did not prejudice defendant

within the meaning of Strickland. Defendant’s conflict with nearby rival gang members explained

why he would have a firearm. It was simply one piece of motive evidence to help establish that

defendant did, in fact, possess a firearm, and it was not a focus of the State’s case. Even without

this evidence, there was still direct evidence of defendant’s possession of a firearm in the form of

eyewitness testimony, a video of the recovery of the firearm, and the firearm itself. Defendant has

not established prejudice under Strickland, and his claim of ineffective assistance fails.

Accordingly, we reject defendant’s claim of ineffective assistance of counsel.

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¶ 35 Defendant’s final contention is that the prosecution’s improper opening and closing

statements deprived him of a fair trial. Defendant has forfeited his challenges to the State’s opening

statement and closing argument, but we will review them for first-prong plain error.

¶ 36 Defendant contends that the State’s opening wherein the ASA claimed that defendant did

not “care about the rules” of society, was argumentative, insinuated that he had a propensity for

criminal behavior, and suggested an improper “us-versus-them” theme. Due process guarantees

the defendant a fair and impartial trial under both the United States and Illinois Constitutions. U.S.

Const., amend. XIV; Ill. Const. 1970, art. 1, § 2. The State generally has wide latitude to discuss

the case during its opening statement (People v. Pasch, 152 Ill. 2d 133, 184 (1992)), including the

evidence that will be presented and matters that may be reasonably be inferred from that evidence

(Smith, 141 Ill. 2d at 63). However, an opening statement cannot be argumentative, and comments

intended “only to arouse the prejudice and passion of the jury are improper.” People v. Jones, 2016

IL App (1st) 141008, ¶ 21. The standard of review for opening statements is unclear. People v.

Williams, 2020 IL App (1st) 163417, ¶ 41. Courts have used both a de novo standard (see, e.g.,

Jones, 2016 IL App (1st) 141008, ¶ 23) and an abuse of discretion standard (see, e.g., People v.

Trotter, 2015 IL App (1st) 131096, ¶ 43). We need not resolve this apparent conflict because our

conclusion would be the same under either standard of review.

¶ 37 We do not find clear or obvious error in the portion of the opening statement that defendant

challenges. We have read the opening statement of the prosecution and do not find that it suggested

defendant’s propensity for criminal behavior. In addition, we do not find the State’s opening was

argumentative. The State suggested that the evidence would show that defendant broke the law by

possessing a firearm without a FOID card or concealed carry license. That is what count I alleged,

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so it was proper for the State to tell the jury that the evidence would establish an element of one

of the charged offenses.

¶ 38 The State cannot, and did not here, suggest an “us-versus-them” mentality to the jury. See

People v. Wheeler, 226 Ill. 2d 92, 129 (2007). The State’s reference to some undefined rules of

society that “we all have to abide” because “they help keep us safe” did not mean that defendant

had or would put the jury in danger. Cf. People v. Deramus, 2014 IL App (1st) 130995, ¶¶ 57, 59

(State improperly aligned itself with the jury when it argued that “what defendant did was wrong,

but most importantly, it’s what he’s doing to us”) (Emphasis in original.). Even if the State

obliquely suggested an “us-versus-them” theme, we are not “obligated to assume that the jury

accepted a comment’s most damaging interpretation.” See People v. Brooks, 246 Ill. App. 3d 777,

784 (1993). Furthermore, the trial court cured any prejudice to defendant by instructing the jury

that “[n]either opening statements nor closing arguments are evidence.” See People v. Myers, 249

Ill. App. 3d 972, 978 (1991). Because the jury was properly instructed, we presume that they

followed the law. See People v. Sutton, 353 Ill. App. 3d 487, 501 (2004). Accordingly, we find no

error in the challenged portions of the State’s opening argument.

¶ 39 Finally, defendant contends that the State’s closing argument improperly criticized his

decision to exercise his right to stand trial and encouraged the jury to punish him for being an

irresponsible gun owner. In closing, the State may comment on the evidence presented at trial and

draw reasonable inferences from that evidence, even if those inferences reflect poorly on the

defendant. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). Defendant “faces a substantial burden

in attempting to achieve reversal of his conviction based upon improper remarks made during

closing argument.” See People v. Moore, 358 Ill. App. 3d 683, 693 (2005). We review the State’s

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arguments in their entirety and view allegedly improper remarks in context. Wheeler, 226 Ill. 2d

at 122. Even if the State’s remarks were improper, we will not reverse the jury’s verdict unless the

remarks resulted in substantial prejudice, that is, if the improper comments were a material factor

in the defendant’s conviction. Id. at 123.

¶ 40 We find no clear or obvious error in the State’s closing argument. Most of the State’s

closing argument focused on the evidence of defendant’s possession of a firearm. The State did

not mention defendant’s choice to go to trial at all. We do not interpret the State’s argument that

defendant “has been avoiding responsibility for his decision” as an attack on his right to a trial.

Nor do we find the State’s discussion of what a responsible gun owner would do to be improper.

An element of AUUW as charged was that defendant’s firearm was “uncased.” See 720 ILCS

5/24-1.6(a)(1)/(3)(A-5) (West 2018). The State was simply highlighting the evidence in support of

this element by contrasting defendant’s behavior with the options for securing a firearm when in

public. The State was not, as defendant claims, accusing him of the crime of reckless conduct. In

fact, it did not mention that crime or the word “reckless” at all. We find no error in the challenged

portion of the State’s closing argument.

¶ 41 Defendant’s citation to People v. Williams, 2020 IL App (1st) 163417 is misplaced. In

Williams, the defendant was found guilty of armed habitual criminal based on his possession of a

firearm after having been previously convicted of burglary and the manufacture or delivery of a

controlled substance. Williams, 2020 IL App (1st) 163417, ¶¶ 1-2. On appeal, we reviewed his

challenges to the State’s opening statement and closing argument for first and second-prong plain

error. Id. ¶¶ 35-37. We explained that “[b]y contrasting defendant’s actions of not turning himself

in and not pleading guilty with [his codefendant]’s actions of talking to the police and pleading

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guilty, the prosecutor was criticizing defendant’s invocation of his constitutional rights to remain

silent and go to trial,” which was improper. (Internal quotation marks omitted.) Id. ¶ 45. The State

compounded this error by arguing that defendant “has been running from the responsibility he

should be taking” and that the jury should tell the defendant, “It’s time for you to take responsibility

for your actions.” (Emphasis in original.) Id. at ¶¶ 46, 47. We affirmed, finding that the State’s

remarks were improper, but that the evidence was not closely balanced, so plain error did not

occur. Id. ¶¶ 50, 84.

¶ 42 The key difference between Williams and this case is that, in Williams, the State contrasted

the defendant’s actions with those of his codefendant, who turned herself in to police, cooperated

with them, and, most importantly, pled guilty. Williams instructs that it is improper for the State

to argue that a defendant should have pled guilty like his codefendant, which did not happen here.

It is proper for the State to discuss taking responsibility in the context of a “defendant’s flight from

the crime scene and disposal of the gun.” See, e.g., People v. Thompson, 2013 IL App (1st) 113105,

¶ 83. Accordingly, we reject defendant’s claim of prosecutorial misconduct during closing

argument.

¶ 43 III. CONCLUSION

¶ 44 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 45 Affirmed.

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