People v. Fane

2022 IL App (2d) 180151-U B
No. 2-18-0151
Order filed June 1, 2022

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Stephenson County.
Plaintiff-Appellee, )
)
v. ) Nos. 16-CF-283
) 16-CM-1034
)
TWIQWON R. FANE, ) Honorable
) Val Gunnarsson,
Defendant-Appellant. ) Judge, Presiding.
_____________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court.
Justices Schostok and Brennan concurred in the judgment.

ORDER
¶1 Held: Evidence was not closely balanced for purpose of establishing plain error.

¶2 I. INTRODUCTION

¶3 Following a jury trial in the circuit court of Stephenson County, defendant, Twiqwon R.

Fane, was convicted of home invasion, burglary, attempted robbery, and aggravated battery. He

was sentenced to 30 years’ imprisonment for home invasion and several lesser sentences for the

other offenses, which were to run concurrently. Defendant previously appealed, raising two

alleged errors. First, he asserted that the trial court should not have given the jury an accomplice-
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witness instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (approved Oct. 17, 2014)

(hereinafter IPI Criminal No. 3.17)) regarding a witness who gave exculpatory testimony for the

defense. Second, he argued that the trial court did not properly question the jury in accordance

with Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) (the State agreed with the latter

contention but argued that it was not properly preserved and did not constitute plain error). We

reversed based on the first issue and did not address the second issue as it was not likely to recur

on remand. See People v. Fane, 2020 IL App (2d) 180151, ¶ 1 (Fane I). The State sought review

in the supreme court, and the supreme court reversed our decision. People v. Fane, 2021 IL

126715, ¶ 1. The supreme court also remanded this case to us with the instruction that we consider

the issue that we did not decide in our earlier disposition. We now do so and affirm.

¶4 II. BACKGROUND

¶5 Defendant was convicted of a number of offenses stemming from a home invasion that

occurred on November 18, 2016. The victim, Voncile Modlinger, testified that her home had also

been broken into six days earlier. McGee pleaded guilty to home invasion and residential burglary

in connection with the incident at issue, and he was sentenced to 10 years’ imprisonment. The

following testimony was presented at defendant’s trial.

¶6 The State first called Timothy Weichel, a sergeant with the Freeport Police Department.

He testified that he was dispatched to a residence on East Pershing Street in Freeport at about 2:23

a.m. on November 18, 2016, regarding an “open 911 call.” An “open 911 call” is a call where

someone dialed 911 but no one then spoke, though one could still hear “some type of interaction

going on on the phone.” Dispatch related that a home invasion was in progress. Weichel parked

near the residence and approached on foot. He could hear a female screaming inside. He

approached the door and looked through a window. Weichel observed a black man with a long

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goatee. Weichel pointed his firearm at the man, and the man fled, leaving the residence. Weichel

later identified the man as McGee. Weichel believed that there was another subject in the house,

as the female was still screaming as if she was being attacked. Weichel entered the residence and

found the female, Modlinger, who informed him that both subjects had fled.

¶7 Weichel testified that he then started to search for the two subjects. He “could hear leaves

crumbling as if somebody was walking through them.” He could also hear “dogs aggressively

barking” in the area, so he searched in that direction. He believed that the subjects were traveling

northeast, and he radioed that to incoming units. About five minutes later, Corporal Ben Johnson

radioed that he saw two individuals running through a field near the Provena St. Joseph Center.

Weichel proceeded to Provena, where he observed that Johnson had two subjects “proned out” on

the ground. He recognized McGee as the man he had observed inside the residence on East

Pershing Street. A show-up identification was completed with Modlinger, and the subjects were

transported to the police station. Subsequently, Weichel located a white T-shirt near where

defendant was taken into custody. The shirt was collected as evidence by Officer James Hodges.

McGee did not wear a mask during the home invasion. Weichel identified defendant as the other

individual taken into custody at Provena.

¶8 On cross-examination, Weichel acknowledged that he moved the white T-shirt before it

was photographed. He explained that he did this so he “could continue to look through the debris

and other stuff.” The shirt was photographed when Hodges collected it.

¶9 The State next called Corporal Johnson. At about 2:30 a.m. on November 18, 2016, he

received a dispatch about the incident taking place on East Pershing Street. He traveled to a

location that he selected based upon what he had heard from Weichel regarding the direction in

which the subjects were fleeing. He exited his squad car and heard dogs barking. He then observed

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two individuals sprinting across a field west of Provena. He radioed this in. They did not see him,

and he ran to catch up to them. Johnson entered the parking lot at Provena and saw the two subjects

crouching down by a parked truck. Johnson added that it looked as if they were trying to conceal

themselves. As he approached, the two subjects saw him and ran. He pursued. The subjects ran

into an area that led to an entrance into Provena but was otherwise a dead end. One subject was

standing in the open, and the other was attempting to hide. Johnson drew his Taser. He ordered

both subjects to the ground, and they complied. Another officer arrived, and the subjects were

handcuffed. Johnson identified body camera footage that showed a white object in defendant’s

possession. On cross-examination, Johnson agreed that defendant was cooperative.

¶ 10 Officer Hodges was the State’s next witness. At approximately 2:22 a.m. on November 18,

2016, Hodges responded to the area of East Pershing Street in Freeport. Weichel had advised that

there were subjects running from the area, heading northeast. Hodges observed two individuals

running in the area of Provena. After Johnson secured the individuals, Hodges transported

defendant to the police department. Defendant told Hodges that he needed Hodges to “call his

people,” whom he identified as Lizzy and Gabby. He stated that Gabby was his girlfriend.

Defendant stated that Gabby’s car had been stolen that night. Subsequently, Hodges returned to

Provena, where he photographed a white T-shirt and took it into evidence.

¶ 11 On cross-examination, Hodges acknowledged that he did not turn on his squad car’s

recording device while he was transporting defendant to the police station. He could not remember

whether he had activated his body camera.

¶ 12 The next witness for the State was Alan Guilfoyle, a 911 dispatcher for the Freeport Police

Department. At about 2:20 a.m. on November 18, 2016, Guilfoyle received a call regarding a home

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invasion of a residence on East Pershing Street. He identified a recording of that call. The caller

seemed frightened and excited.

¶ 13 The victim, Voncile Modlinger, next testified. She stated that she had been living at the

residence on East Pershing Street for over 50 years. In November 2016, the residence was broken

into twice. The first break-in occurred on November 12, 2016. During the first break-in, the

intruder took money and her phone. She bought a new phone and kept it in bed beside her.

¶ 14 On November 18, 2016, in the middle of the night, she heard a noise and called 911. She

stated that someone had broken into her house and that she gave the location. This is all she had

time to say before one of the intruders arrived at the foot of her bed. His face was covered with

something white. He threw a plastic laundry basket at her face. A second man walked in behind

the first intruder. She recognized the second individual. The second man said, “This is my cousin,”

and then “Now don’t you hurt her.” They ordered Modlinger out of bed. One of the men looked

under the mattress. He then grabbed her and pushed her around the bed and into the hall. She saw

the other man in her living room, recognizing him, as he had been there before. The first man lifted

Modlinger up and down. He threw her, and she was not sure what happened next. Eventually, the

police arrived.

¶ 15 On cross-examination, Modlinger agreed that she never heard the two intruders refer to

each other as “cuz” or “bro.” They did not speak to each other much during the incident.

¶ 16 The State’s next witness was Gabrielle Gill. On November 18, 2016, defendant had been

her boyfriend, but they were no longer together. On the night of November 17, 2016, she spent the

night at defendant’s house. When she lay down for the evening, her car was there. Someone had

asked if they could use it, and she said yes. When she awoke, her car was gone. She clarified that

she had given permission to someone to use the car. When she went to bed between 9:30 and 10

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p.m., she was not sure whether defendant was present in the house. She added that she gave

defendant’s cousin permission to use the car, but not defendant. Further, she agreed that she spoke

with Freeport police officer Daniel Moore at about 4 a.m. on November 18, 2016, and told him

that defendant had permission to use her car. She explained that this was on the condition that he

had someone to drive him. Gill testified that she knew McGee. McGee was defendant’s cousin.

She identified a set of car keys (State’s exhibit 6) as having been hers on November 18, 2016.

¶ 17 On cross-examination, Gill stated that there was a lot of stuff in the car on November 18,

2016. She explained that both she and defendant were moving. This included a bag of clothes.

¶ 18 The State then called Moore. He testified that he was on duty on November 18, 2016, at

approximately 2:30 a.m. He was dispatched to a residence on East Pershing Street, where he spoke

to Modlinger. He observed a set of car keys on the living room floor. Modlinger stated that they

were not hers, and Moore took possession of them. He located a vehicle parked nearby that the

keys operated. He subsequently gave them to Hodges to hold as evidence. Moore identified State’s

exhibit 6 as the keys he recovered.

¶ 19 Detective Tim Krieger testified that he obtained DNA samples from defendant and McGee.

He also obtained a sample from the white T-shirt. Heather May, a forensic scientist, analyzed the

samples and determined that neither McGee nor defendant could be excluded from the mixture of

DNA samples recovered from the shirt. She further testified that “approximately one in 4.1 million

black” individuals could not be excluded from the sample. The State also called several witnesses

to testify to the chain of custody of various items of evidence.

¶ 20 The State then rested. Defendant first recalled Guilfoyle. He testified that he did not recall

either of the subjects saying that the other was his cousin. during the 911 call. He did, however,

hear the subjects call each other “bro” or “cuz” on multiple occasions.

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¶ 21 Defendant also called McGee. McGee testified that he was in the custody of the Illinois

Department of Corrections as a result of the break-in on East Pershing Street on November 18,

2016. McGee pleaded guilty to home invasion and residential burglary.

¶ 22 McGee testified that on November 17, 2016, he was at his cousin’s house on Elk Street.

About eight people were present, including defendant, Gill, Liz, Brittany, and James Beales

(McGee identified some of those present only by first name). At one point, McGee, defendant,

Brittany, and Beales left in Gill’s car to go to Logan’s (apparently, a tavern). Brittany drove, as

she was the only one with a driver’s license. They left Logan’s together. Brittany subsequently

left, and Beales started driving. Defendant got into the front passenger seat. About 30 minutes

later, they dropped defendant off near the corner of Rotzler Avenue and Galena Avenue. When

defendant left, McGee got in the front passenger seat. Beales and McGee drove around for about

20 minutes and smoked two “blunts.” They were “scheming” the home invasion.

¶ 23 They eventually went to Modlinger’s house. When asked why they selected Modlinger’s

house, McGee said he was “just following” Beales. Both men had taken white T-shirts from Gill’s

car. Beales covered his face. They made contact with Modlinger, and Beales dragged her out of

bed. McGee was looking for money. After 10 to 15 minutes, he heard something at the front door

and pulled the curtains back. A police officer shined a light into the house at McGee. McGee ran

out the other door, saying, “Come on, Cuz” twice to Beales on the way out. McGee testified that

he ran across the street and Beales ran up the street. McGee had not put a T-shirt over his face,

because the house was dark and he described himself as “black, black”. However, he kept the shirt

with him.

¶ 24 McGee heard dogs barking. He ran to Provena. As he approached Provena, he noted two

police cars in the area, so he crouched down. He saw an individual wearing a black hoody. The

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individual turned around, and it was defendant. McGee heard someone say “stop” and “get on the

ground.” He ran and told defendant, “Come on.” They ran into a dead end and were cornered.

McGee threw his T-shirt to defendant.

¶ 25 McGee testified that he was not a blood relative of defendant, but he was of defendant’s

half-sister. He was a blood relative of Beales.

¶ 26 On cross-examination, McGee acknowledged that he referred to defendant as his cousin.

McGee stated that it was his accomplice’s idea to target Modlinger’s house. McGee denied ever

having been there before. After the police officer came to the front door of Modlinger’s house,

McGee fled, running across a street, through a backyard, through “a woods,” past a youth home

(Sleezer Home), and to Provena. McGee stated he was alone until he got to Provena. He ran into

defendant at Provena. McGee clarified that, though he said that he had run through “woods,” it

was more of a field. When McGee encountered defendant by Provena, he told defendant that he

was “creeping” around because there were two police cars nearby. According to McGee, defendant

then stated that he was selling “weed” and that he felt that he was being set up. McGee clarified

that defendant was about to meet someone for a drug deal. McGee was about to tell defendant

what he and Beales had done when the police arrived. McGee explained that he threw the white

T-shirt to defendant just before the police apprehended them, because defendant was closer to the

building and he thought that defendant could throw it on the roof.

¶ 27 McGee testified that he and defendant had been friends for 15 to 17 years, though they had

had “[a] couple fights.” When asked whether he considered defendant a close friend, McGee stated

that defendant was “[a] 50/50 friend.” When McGee observed defendant at his cousin’s house on

Elk Street, he did not recall seeing burs on defendant’s clothing. On redirect examination, McGee

explained that he referred to many people as “cuz” or “bro.”

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¶ 28 Defendant rested and the State called Hodges in rebuttal. Hodges testified that he collected

a black hooded sweatshirt from defendant on the night of November 18, 2016. The sweatshirt was

admitted into evidence. The shirt had “cockleburs or prickly things” on the front of it.

¶ 29 The jury found defendant guilty of home invasion (count II), residential burglary (count

III), conspiracy to commit residential burglary (count IV), attempted robbery (count V),

aggravated battery (victim over 60 years of age) (count VI), and aggravated battery (while masked)

(count VII).

¶ 30 III. ANALYISIS

¶ 31 The remaining issue in this case upon remand concerns voir dire. Defendant contends that

the trial court did not conduct voir dire in accordance with Illinois Supreme Court Rule 431(b)

(eff. July 1, 2012). This rule requires a trial court to ask all potential jurors whether they

understand and accept each of four 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.” Id. The failure to inquire regarding any one of these principles constitutes

noncompliance with this rule. See People v. Thompson, 238 Ill. 2d 598, 607 (2010).

¶ 32 Defendant points out that the trial court neglected to question one panel of four potential

jurors whether they understood and accepted the principles set forth in Rule 431(b). One of these

individuals was seated on the jury. The State concedes that this was error; however, it points out

that defendant did not object to this omission. The State further argues that this error does not rise

to the level of plain error.

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¶ 33 Plain error arises in two forms; it occurs either when “(1) the evidence is close, regardless

of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the

evidence.” People v. Heron, 215 Ill. 2d 167, 187 (2005). Here, defendant focuses on the first

prong of the analysis, which is commonly referred to as the closely-balanced prong. To succeed,

defendant must show “that the evidence was so closely balanced that the error alone severely

threatened to tip the scales of justice against him.” Id. Parenthetically, we note that violations of

Rule 431(b) are generally not amenable to plain-error analysis under the second prong of the test.

Thompson, 238 Ill. 2d at 614-15.

¶ 34 Defendant argues that the outcome of his trial turned on a credibility contest between

McGee and the State’s witnesses. Defendant points to People v. Naylor, 229 Ill. 2d 584, 608

(2008), where the supreme court stated: “Of course this evidence was closely balanced. The

evidence boiled down to the testimony of the two police officers against that of defendant.” We

note, however, that the Naylor court also stated, “[A]t the close of the testimony in this case, the

trial court was faced with two different versions of events, both of which were credible.” Id. As

we explain below, this is not the case here.

¶ 35 Defendant contends that had the jury believed McGee, it would have acquitted him.

According to defendant, McGee’s testimony explained why defendant was in the area and why he

would have run from the police (defendant’s alleged drug deal). Moreover, defendant points out,

the white T-shirt recovered where defendant was arrested contained DNA samples from which

neither he nor McGee could be excluded. Defendant also points out that if he used the T-shirt

during the home invasion and retained it until just before he was arrested, McGee’s DNA should

not have been on the shirt.

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¶ 36 The State counters that the evidence was not closely balanced. It notes that, “[i]n

determining 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.” People v. Sebby, 2017 IL 119445, ¶ 53. The State further observes that evidence is

not closely balanced where “one party’s version of events was either implausible or corroborated

by other evidence.” People v. Olla, 2018 IL App (2d) 160118, ¶ 35. The State contends both

conditions are present here.

¶ 37 The State first notes that it is undisputed that McGee entered the victim’s house with

another man who was wearing a white mask. McGee referred to the man as “cuz.” At trial, McGee

testified that he referred to defendant as “cuz” or “bro.” Gill testified that she knew McGee and

defendant to be cousins. Weichel testified that two men fled from the victim’s home. Johnson

testified that he observed two individuals sprint across a field behind Provena and crouch down

near a truck. He apprehended them; it was defendant and McGee. Footage from Johnson’s body

camera shows a white object in defendant’s possession. Defendant and McGee were apprehended

about four blocks from the victim’s home and about five minutes after the two individuals fled

from her home. The keys from defendant’s girlfriend’s vehicle were found in the victim’s home,

and it was parked nearby. As Hodges transported defendant to the police station, defendant stated

that his girlfriend’s car had been stolen. McGee testified that Beales fled down the street; however,

despite the police presence in the area, he was not apprehended.

¶ 38 McGee testified that he happened to run into defendant just before the two men were

apprehended. Defendant happened to be preparing to engage in a drug transaction in the exact

location to which McGee fled. Just prior to being caught, McGee—who had not used a mask

during the home invasion—threw a white T-shirt to defendant. Moreover, Johnson had observed

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two men running across an area variously described as a field or a woods. The hooded sweatshirt

defendant was wearing when he was apprehended had cockleburs on it.

¶ 39 The defense’s version is implausible. First, there is the coincidental meeting between

defendant and McGee moments before the two were apprehended by the police. Defendant’s

version requires that defendant set up a drug transaction in the very location McGee fled to after

the home invasion. Further, the two were caught a mere five minutes after and four blocks away

from the site of the home invasion. Defendant’s girlfriend’s vehicle was found in the area of the

home invasion, and her keys were found in the victim’s home. Defendant manifested

consciousness of guilt by telling Hodges that the vehicle had been stolen while defendant was

being transported to the police station. Notably, defendant had been in the vehicle not long before

the home invasion, as McGee testified that they had dropped defendant off about 30 minutes after

they left Logan’s. Thus, the last thing defendant would have known based on McGee’s version of

events was that the vehicle was in the possession of McGee and Beales. There is no plausible

reason that he would have thought the vehicle had actually been stolen in the short time between

when he was allegedly dropped off and then reunited with McGee. Clearly, defendant was trying

to provide an innocent explanation for the vehicle’s presence near the scene of the home invasion.

McGee testified that he did not have a chance to tell defendant about the home invasion after they

met at Provena, so, on McGee’s version, defendant would have no reason to claim Gill’s car was

stolen as he would not have known about the home invasion. Additionally, the cockleburs on

defendant’s sweatshirt provide confirmation that he was one of the men Johnson observed running

across the field. He simply would not have picked up such burs walking down a sidewalk or

standing around in a parking lot. Also, accepting McGee’s version would require one to believe

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that he carried around a T-shirt during the home invasion and while fleeing despite the fact that he

did not use it during the crime and did not feel he needed to cover his face.

¶ 40 Given the implausibility of McGee’s version of events, we cannot say that this case

involved a credibility contest between McGee and the State’s witnesses. Naylor, 229 Ill. 2d at

608, which defendant cites, begins with the proposition that the trier of fact was presented with

two plausible version of events—one from the State and one from the defense. Such is not the

case here. As defendant’s version strained credulity, the evidence was not closely balanced. See

People v. Lopez, 2012 IL App (1st) 101395, ¶ Id. 88-89.

¶ 41 Before closing, we must comment on our finding in Fane I, 2020 IL App (2d) 180151, ¶

40, that the State had failed to establish that the error at issue in that case was not prejudicial

because “McGee’s testimony represented defendant’s entire defense, and resolution of this case

turned on the relative credibility of McGee and the State's witnesses.” That is, it was the State’s

burden to show that the error was harmless beyond a reasonable doubt. People v. French, 2020

IL App (3d) 170220, ¶ 28. Conversely, here, it is defendant’s burden to establish that the evidence

was closely balanced. People v. Piatkowski, 225 Ill. 2d 551, 567 (2007). These are very different

standards, as our supreme court explained in People v. Thurow, 203 Ill. 2d 352, 363 (2003):

“Though plain-error analysis normally requires the same kind of inquiry as does

harmless-error review, there is an ‘important difference’ between the two. [Citation.] In a

harmless-error analysis, which applies where, as in the case at bar, the defendant has made

a timely objection, it is the State that ‘bears the burden of persuasion with respect to

prejudice.’ [Citation.] In other words, the State must prove beyond a reasonable doubt

that the jury verdict would have been the same absent the error. [Citations.] The situation

is different under a plain-error analysis, which applies where the defendant has failed to

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make a timely objection. There, ‘[i]t is the defendant rather than the [State] who bears the

burden of persuasion with respect to prejudice.’ [Citation.] ‘In most cases, a court of

appeals cannot correct the forfeited error unless the defendant shows that the error was

prejudicial.’ [Citation.]”

¶ 42 As a corollary, “[t]o preserve a purported error for consideration by a reviewing court, a

defendant must object to the error at trial and raise the error in a posttrial motion.” People v. Sebby,

2017 IL 119445, ¶ 48. Defendant admits that no objection was made in regard to the alleged error

occurring during voir dire.

¶ 43 Hence, there is nothing inconsistent with our earlier finding that the State failed to prove

beyond a reasonable doubt that the outcome of the proceeding would have been different and our

finding here that defendant has not established that the evidence is closely balanced. Cf. People

v. Holt, 2019 IL App (3d) 160504-B, ¶ 42 (“While we have already determined that the evidence

was sufficient for a reasonable trier of fact to find beyond a reasonable doubt that Holt committed

retail theft, it is imperative to recognize that the question of whether evidence is sufficient under a

reasonable doubt challenge is different from the question of whether evidence

is closely balanced under plain-error review.”).

¶ 44 Accordingly, we hold defendant has not established that plain error occurred in this case.

¶ 45 IV. CONCLUSION

¶ 46 In light of the foregoing, the judgment of the circuit court of Stephenson County is

affirmed.

¶ 47 Affirmed.

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