People v. Brown

2023 IL App (3d) 210460

Opinion filed August 21, 2023
__________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0460
v. ) Circuit No. 18-CF-787
)
QUADRIX T. BROWN, ) Honorable
) Alicia Washington,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE DAVENPORT delivered the judgment of the court, with opinion.
Justice Albrecht concurred in the judgment and opinion.
Justice Peterson concurred in part and dissented in part, with opinion.
____________________________________________________________________________

OPINION

¶1 Defendant, Quadrix T. Brown, appeals from his Class 2 felony conviction of driving while

license revoked (DWLR) (625 ILCS 5/6-303(a), (d-5) (West 2018)), for which he received an

eight-year prison sentence. Defendant contends the trial court should have declared a mistrial upon

erroneously and belatedly barring his necessity defense (1) based on flawed obiter dictum and

(2) after defendant had testified to driving illegally in reliance on a pretrial ruling permitting

defendant to present evidence supporting a necessity defense. Defendant further contends he was

prejudiced by the prosecutor’s improper definition of reasonable doubt during closing argument.
 Finally, defendant contends his felony conviction lacked evidentiary basis and must be reduced to

a misdemeanor and his sentence modified accordingly. For the reasons that follow, we affirm

defendant’s conviction without enhancement, vacate his sentence, and remand with directions.

¶2 I. BACKGROUND

¶3 Defendant was charged with one count of Class 2 felony DWLR (id.) 1 for driving on

August 15, 2018, while his “driver’s license was revoked under section 11-501.1 or for a violation

of section 11-501(a) of the Illinois Vehicle Code” (Code) (id. §§ 11-501(a), 11-501.1) and while

having at least 15 prior convictions under section 6-303(a) of the Code. A jury trial was scheduled

for June 2021.

¶4 A. Motion in Limine

¶5 Days before trial, the State moved in limine to bar defendant from raising the affirmative

defense of necessity. The motion argued DWLR was an absolute liability offense to which no

affirmative defense may apply.

¶6 On the morning of trial, the court held a hearing on the State’s motion. It asked defense

counsel to proffer facts regarding defendant’s case that might warrant the defense of necessity.

Defense counsel stated,

“I can proffer that my client was driving on a suspended license, and that the only

reason he got behind the wheel of the car is because he had a chance meeting with

*** an ex-girlfriend. She had a knife, and she threatened him that she was going to

do something to [his] girlfriend and him.”

Defendant’s indictment cited only section 6-303(a), which sets forth the elements of a basic
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DWLR offense—a Class A misdemeanor. It did not cite section 6-303(d-5), which sets forth the
enhancement factors for a Class 2 felony DWLR offense.

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 The court denied the State’s motion, stating, in part,

“[At] this time, with the information that the Court’s been presented, the Court is

going to deny the motion in limine and consider granting that particular instruction

at the appropriate time.

***

*** [I]n this particular matter, the Court is certainly willing to allow

information to come in and then make a determination at the instruction time in

regards to if that instruction will be rendered.”

¶7 B. Jury Trial

¶8 Before admitting prospective jurors to the courtroom, the court read defendant’s indictment

and noted that the DWLR offense becomes a Class 2 felony “after so many violations.” The court

asked defense counsel, “Any issues ***? Concerns? Questions?” In response, defense counsel

simply requested the jury be informed that defendant was asserting the defense of necessity.

¶9 1. Court’s Opening Remarks

¶ 10 During jury selection, the court informed the jury venire that defendant had pled not guilty

to DWLR and was asserting the defense of necessity. It also stated that the jury must decide

whether the State proved defendant guilty beyond a reasonable doubt and that the jury would not

be told the meaning or definition of “beyond a reasonable doubt.”

¶ 11 2. Opening Statements

¶ 12 Both sides addressed the necessity defense in their opening statements. The State advised

the jury that it will hear that defendant was driving on a revoked license “[a]nd he’s going to want

to use the defense of necessity, but that is absolutely not true. You’re going to see video that

[defendant] was not in fear of his life.” Defense counsel, on the other hand, advised the jury that

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 defendant drove illegally but was asserting the defense of necessity. He stated, “[O]nly out of

necessity did [defendant] drive to protect himself and his new girlfriend from the threats of his old

girlfriend, who also had a knife earlier on and displayed it.”

¶ 13 3. The State’s Case-in-Chief

¶ 14 The State’s sole witness, Peoria police officer Mark Lamb, testified as follows. At around

midnight on August 15, 2018, Lamb was patrolling the 1800 block of Lehman Avenue when he

observed two vehicles coming around a corner at a fairly high speed, squealing their tires. A

maroon Buick was apparently chasing a white Cadillac. The vehicles passed Lamb’s squad car and

pulled into a nearby parking lot. Lamb turned his squad car around and followed the vehicles into

the parking lot. When he pulled up behind the vehicles, Lamb found them parked side by side.

Although Lamb did not witness defendant driving or exiting the Cadillac, he observed defendant

walk around the front of the Cadillac toward the Buick and begin to argue with Brianna Turner,

the Buick’s driver. Upon speaking with defendant, Lamb learned that Turner was defendant’s

girlfriend and that defendant “was just trying to get away from her.” According to defendant,

Turner “was mad at [defendant] and was chasing him because he had another female in his car.”

Defendant informed Lamb that “he was revoked.” Upon running a name search, Lamb discovered

that both defendant and Turner had revoked driver’s licenses. He issued defendant citations for

DWLR and for driving without proof of insurance. Lamb testified he did not recall if there was

another person in the Cadillac, did not recall hearing any screaming or yelling, and did not notice

a dangerous situation or that defendant was in fear or in any form of emergency.

¶ 15 The State presented two exhibits, both of which were admitted without objection:

(1) defendant’s driving abstract providing simply, “Revocation was in effect on 08-15-2018,” and

(2) a disc containing 43 minutes of Lamb’s dashcam video footage of the encounter. Upon the

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 State’s request, the court ruled that the second exhibit “should be published and admitted.” Both

exhibits are included in the record on appeal.

¶ 16 The State played the first minute of the video, which Lamb testified was an accurate

depiction of the speeding vehicles, a sedan followed by an SUV, and of what unfolded when he

pulled up to the vehicles parked in the apartment complex parking lot. The second half of the one-

minute segment depicts a white sedan parked to the left of a maroon SUV. Lamb’s police car pulls

up just as defendant walks around the front of the sedan toward the SUV. The rear door on the

sedan’s driver’s side is ajar. As Lamb approaches defendant, an unidentified passenger can be seen

leveraging his body weight to shut the door. 2 Lamb asks, “What is going on?” Defendant responds,

“Nothing man.” In the last five seconds of the segment, defendant can be heard saying, “I’m in the

car with another girl *** It’s nothing,” to which Lamb responds, “You damn near hit me!”

¶ 17 The State then played the video from 5 minutes and 56 seconds to 6 minutes and 2 seconds.

In this short segment, Lamb asks defendant, “Are you suspended, revoked, or what?” Defendant

responds, “Revoked.” Due to court-related technical issues, however, the jury was unable to hear

the soundtrack accompanying this segment. In the silent video, Lamb can be seen facing defendant

and presumably speaking to him for the duration of the brief segment. After an attempt to fix the

court’s audio issue, the State opted to proceed without playing the audio for the jury.

¶ 18 4. Defendant’s Case-in-Chief

¶ 19 Upon defense counsel’s request, the court played the first 5 minutes and 50 seconds of

Lamb’s dashcam video. The first minute overlapped the one-minute segment played in the State’s

case-in-chief. At the one-minute mark, after Lamb exclaims, “You damn near hit me!” defendant

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It is clear the rear passenger door, not the driver’s door, is momentarily ajar before being shut by
the rear-seat passenger. An easy reference point is the side mirror on the driver’s door; it does not move
when the door is shut.

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 can be heard saying, “Right, because, you know, she’s chasing me.” Lamb then asks for

identification and defendant provides his name, informing Lamb that his identification is in the

car. Defendant walks back to the driver’s side of the sedan, opens the driver’s door, and appears

to retrieve something from the driver’s seat area. Lamb walks to the driver’s side of the sedan,

where defendant informs him that he has no identification and no license. When defendant tries to

explain that “all it is, bro, I’m in the car with another girl,” Lamb states, “I get that. That’s fine.

You’re both driving like idiots—all right. You damn near hit me.” After a short pause, defendant

responds, “I understand that.”

¶ 20 Lamb takes down defendant’s information and proceeds to speak to Turner, who insists

she was not driving her vehicle. Due to hearsay concerns, the court muted the sound in the portion

of this segment depicting Lamb’s exchange with Turner. (Although Turner was on the State’s

witness list, she failed to appear.) Lamb speaks to Turner in defendant’s presence for much of the

video segment. In the final minute of the segment, Lamb speaks to Turner away from defendant.

¶ 21 After the video segment is played for the jury, defendant testified as follows. At around

midnight on August 15, 2018, he was leaving an apartment complex with Cierra Tracy, his

girlfriend at the time. Tracy was driving because defendant did not have a driver’s license. As they

left the complex, “some lights jump[ed] behind” them, causing Tracy to pull over on Lehman

Road. Defendant’s ex-girlfriend, Turner, who had been following them too closely, pulled up

beside their vehicle and “pinned [them] in.” Turner began yelling at defendant and Tracy, “talking

about what she was gonna do, all that.” Without much thought, defendant told Tracy to switch

seats and let him drive instead. He wanted to avoid the “drama” and thought he could extricate

Tracy and himself from the situation with his superior driving skills. Defendant “didn’t feel like

[he] was in danger *** to where [he] had to call the police right then and there. [He] was just trying

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 to get up out of there.” Defendant and Tracy switched seats, and defendant began to drive. As he

came around the bend on Lehman Road, defendant noticed Lamb’s police car and proceeded to

turn into the nearest parking lot. Defendant thought Turner would end her pursuit if he entered a

parking lot in the police car’s vicinity. She did not end her pursuit. Instead, she followed his vehicle

into the parking lot and parked beside him. Defendant exited his vehicle, leaving Tracy in the front

passenger seat, and confronted Turner. He asked her why she was “running up on the car like that

and trying to pin [them] in. And she kept saying, ‘I’m gonna kill both of y’all,’ woo, woo.” 3 Lamb

approached and asked defendant for his license. Defendant acknowledged that he did not have one.

Lamb instructed him to stand behind his car and proceeded to speak to Turner. Lamb returned only

to ask for defendant’s name, which defendant provided. Lamb ran defendant’s name, wrote him a

ticket, and informed him that his car would be towed.

¶ 22 The defense did not call any other witnesses, and the trial was adjourned to the following

morning for closing arguments.

¶ 23 5. The State’s Motion to Reconsider

¶ 24 After the jury left for the day, the court informed the parties that, before defendant took the

stand, the State provided the court a motion to reconsider its ruling denying the State’s motion

in limine. (Upon learning that defense counsel had not received a copy of the motion, the court

instructed the State to provide defense counsel a copy, which it did soon after.) The motion urged

the court to “bar the defense of necessity as it is not allowed by law.” In support of this proposition,

the motion argued that People v. Jackson, 2013 IL 113986, held that “for violations of [section] 6-

303, when a defendant does not contest that his license was suspended or revoked, the offense is

At this point in the examination, the court overruled the State’s hearsay objections to defendant’s
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testimony of his statements to Turner and of her response.

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 an ‘absolute liability offense, and that there is no affirmative defense, such as insanity or

necessity.’ ” The motion also argued that defendant did not satisfy the elements of the necessity

defense as set forth in People v. Janik, 127 Ill. 2d 390 (1989), because he was “to blame for getting

behind the wheel of his car [and] therefore he, himself, developed the situation for driving his

vehicle while revoked.”

¶ 25 The court granted the motion to reconsider the next morning, stating:

“The Court has heard several arguments in regards to this very issue. The

issue of necessity has been brought up over and over again in this particular set of

facts. The Court has had the opportunity also to listen to statements made

throughout the course of trial, in addition to reviewing case law that’s been

provided.

The motion to reconsider involves necessity which in the criminal code has

been discussed as an affirmative defense.

Certainly it’s defined as conduct which would otherwise be an offense is

justifiable by reason of necessity if the accused was without blame in occasioning

or developing the situation to reasonably believe such conduct was necessary to

avoid a public or private injury greater than the injury which might reasonably

result from his own conduct.

However, the defense of necessity is viewed as choosing. I recognize that

everyone here has recognized those particular comments that have been made.

The case of—the Jackson case that has been—People v. Jackson, the

supreme court case that has been cited talks a little bit more about the Illinois

Vehicle Code.

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 And in the Illinois Vehicle Code, the issue of driving with a license

suspended, driving with license revoked have been labeled as strict liability

offenses, and the issue of affirmative defenses will not be given.

Based upon this information, the Court is looking at the Illinois Vehicle

Code specifically, in addition to the additional cases that have been cited in the

motion to reconsider, and the Court will grant the motion to reconsider at this time.”

¶ 26 6. Jury Instruction Conference

¶ 27 Minutes later, and consistent with its grant of the motion to reconsider, the court rejected

defendant’s proposed jury instructions referencing the necessity defense.

¶ 28 7. Closing Arguments

¶ 29 In their closing arguments, both sides alluded to defendant’s justification for driving on a

revoked license (or lack thereof). The prosecutor stated, “Now what does reasonable doubt mean?

It means the State has to prove that there was [sic] no other reasonable alternatives for the actions

that the defendant took on August 15th, 2018.” Defendant did not object to this statement. During

the defense’s closing argument, counsel stated, “[I]t was justifiable that [defendant] got behind the

[wheel] of the car and drove it a short distance he did to get away from [Turner.]”

¶ 30 Before sending the jurors to deliberate, the court instructed them that the burden was on

the State to prove defendant guilty beyond a reasonable doubt.

¶ 31 8. Jury’s Clarification Request and Verdict

¶ 32 During its deliberation, the jury submitted the following question to the court:

“Clarification of the law for being able to drive like for a medical reason or something else or any

other circumstances without a license or suspension.” The court responded, “You have received

the law. You have received your instructions. Please review[.]”

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¶ 33 The jury returned a guilty verdict.

¶ 34 C. Defendant’s Posttrial Motion

¶ 35 Defendant moved for a new trial or, alternatively, an acquittal. He argued, in part, that the

court erred in reversing itself and barring the necessity defense. According to defendant, the jury

should have been instructed on the necessity defense.

¶ 36 The court denied the motion, stating it “stands by [its previous rulings], specifically

referring to case law that was presented, People v. Jackson, as well as all of the information

contained within the necessity information, specifically absolute liability offenses. So the Court

does pay close attention to that information.”

¶ 37 D. Sentencing

¶ 38 At sentencing, the State noted that defendant’s presentence investigation report (PSI)

indicated he had 44 prior convictions for driving while license revoked or suspended, including

the conviction in this case. The court sentenced defendant to an eight-year prison term.

¶ 39 Defendant moved to reconsider his sentence. At the hearing on the motion, defense counsel

conceded that defendant had over 15 prior convictions for driving while license revoked or

suspended. He argued, however, that an eight-year sentence was excessive in light of the

circumstances that led defendant to drive the car.

¶ 40 The court denied defendant’s motion, stating, “This Court has considered all items, but at

the same time, I think it’s important to note, [defense counsel], you can have an opinion. I didn’t

see the necessity defense in this particular situation, and this particular sentence stands at this

time.”

¶ 41 This appeal followed.

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¶ 42 II. ANALYSIS

¶ 43 On appeal, defendant argues (1) the trial court erroneously barred his necessity defense

because, contrary to the court’s ruling, necessity was a viable defense to DWLR and defendant

presented slight evidence to support the defense; (2) the trial court should have declared a mistrial

upon barring his necessity defense after he admitted to committing DWLR in reliance on the

court’s initial ruling allowing him to pursue a necessity defense and, alternatively, defense counsel

was ineffective for failing to move for a mistrial based on the court’s decision to “reverse its

ruling”; (3) he was deprived of his right to a fair trial when the prosecutor provided a “nonsensical”

definition of reasonable doubt to the jury in closing argument; and (4) his Class 2 felony conviction

must be reduced to a Class A misdemeanor, his sentence vacated, and the matter remanded for

resentencing because the State failed to introduce any evidence that his license was revoked due

to a driving-under-the-influence (DUI) violation under section 11-501(a) of the Code (625 ILCS

5/11-501(a) (West 2018)) when he committed the charged offense. We address defendant’s

arguments in turn.

¶ 44 A. Viability of Necessity Defense

¶ 45 Defendant’s first contention—that the court erroneously barred his necessity defense—is

premised on the inapplicability of Jackson’s pronouncement barring the affirmative defense of

necessity to absolute liability offenses under section 6-303 of the Code (id. § 6-303). The Jackson

court stated, in pertinent part:

“It is important to note, however, in light of the fact that both parties agree that

section 6-303 has been construed to set forth an absolute liability offense, that there

is no affirmative defense, such as insanity or necessity, to violations of that section

where the defendant does not contest that his license was suspended or revoked.”

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 (Emphasis in original.) Jackson, 2013 IL 113986, ¶ 23 (citing People v. Avery, 277

Ill. App. 3d 824, 827, 830 (1995)).

Defendant maintains that this pronouncement is nonbinding obiter dictum based on

distinguishable facts and inapposite case law. He further maintains that the pronouncement is an

erroneous statement of law and argues there is no conflict between absolute liability, which

obviates the need to prove mens rea, and the necessity defense, which does not contest mens rea.

Defendant points to cases in which this court has recognized the right to raise affirmative defenses

to a charge of driving with a suspended or revoked license. See People v. Planer, 161 Ill. App. 3d

938, 941-42 (1987); People v. Dalton, 7 Ill. App. 3d 442, 444-45 (1972); People v. Espenscheid,

109 Ill. App. 2d 107, 114 (1969). He also highlights cases in which our district has recognized that

a defendant may raise the necessity defense to absolute liability offenses. See People v. Kucavik,

367 Ill. App. 3d 176, 181 (3d Dist. 2006); People v. Gullens, 2017 IL App (3d) 160668, ¶ 20.

Defendant further argues that the supreme court’s own case law contradicts Jackson’s

pronouncement. See People v. Kite, 153 Ill. 2d 40, 44 (1992) (inmate may raise affirmative defense

of necessity to absolute liability offense of weapon possession). Finally, defendant invokes public

policy, arguing that noncompliance with section 6-303 may be justified in certain circumstances.

¶ 46 For the sake of argument, and without opining on the precedential value of Jackson’s

pronouncement, we accept defendant’s premise as true. For the forthcoming analysis, we assume

necessity is a viable affirmative defense to a DWLR charge.

¶ 47 B. Mistrial Contention

¶ 48 Defendant contends the trial court violated his right to a fair trial by failing to declare a

mistrial sua sponte upon barring his necessity defense on the State’s motion to reconsider. This

contention is at the heart of defendant’s appeal. According to defendant, he suffered substantial

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 prejudice because the court “reversed course” and barred his necessity defense after he had already

taken the stand and admitted to driving on a revoked license. “A mistrial should be granted where

an error of such gravity has occurred that the defendant has been denied fundamental fairness such

that continuation of the proceedings would defeat the ends of justice.” People v. Nelson, 235 Ill.

2d 386, 435 (2009). Defendant argues that had he known before trial he would not be able to pursue

a necessity defense, “he could have adopted a different trial defense which did not involve him

testifying and admitting he committed DWLR.”

¶ 49 Defendant’s contention concerns his constitutional right to a fair trial. “In general, the

standard of review for determining if an individual’s constitutional rights have been violated is

de novo.” People v. Hale, 2013 IL 113140, ¶ 15. Defendant argues the trial court’s grant of the

State’s motion to reconsider left him in an “untenable and prejudicial situation.” See People v.

Cooper, 66 Ill. App. 3d 205, 207 (1978). We reject defendant’s contention.

¶ 50 1. Trial Ruling’s Evidentiary Basis

¶ 51 Defendant argues the trial court reversed course by granting the State’s motion to

reconsider. This mischaracterizes the record. In finding the necessity defense unavailable to

defendant, the trial court clearly considered whether the trial evidence lent any support to the

necessity defense and determined that it did not. The court based its grant of the State’s motion to

reconsider on the two cases cited in the motion: (1) Jackson, 2013 IL 113986, and (2) Janik, 127

Ill. 2d 390. The motion cited Janik for the necessity defense elements and argued that defendant

did not meet those elements because he was to blame for “getting behind the wheel of his car [and]

therefore he, himself, developed the situation for driving his vehicle while revoked.” In its ruling

on the motion, the court indicated it had considered the evidence along with the case law provided

in the motion. “Based upon this information,” it stated, “the Court is looking at the Illinois Vehicle

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 Code specifically, in addition to the additional cases that have been cited in the motion to

reconsider, and the Court will grant the motion to reconsider at this time.” (Emphasis added.)

Notably, the “additional cases” could only refer to the two cases cited in the motion to reconsider:

Jackson and Janik.

¶ 52 Indeed, the court paid homage to Janik in its ruling by restating the elements of the

necessity defense and observing, “[T]he defense of necessity is viewed as choosing.” See Janik,

127 Ill. 2d at 399 (“This defense is viewed as involving the choice between two admitted evils

where other optional courses of action are unavailable ***.”). The court’s ruling indicates it

considered the evidence to determine whether defendant’s conduct satisfied the elements of a

necessity defense and whether it involved “choosing.” The court prefaced its ruling by stating that

it “had the opportunity also to listen to statements made throughout the course of trial.” The court

would not make such a statement only to disregard the trial testimony in its ruling. See People v.

Mullins, 242 Ill. 2d 1, 18 (2011) (although trial court did not explicitly state it applied balancing

test to determine admissibility of impeachment evidence, trial transcript established court’s

awareness and application of test).

¶ 53 The court’s posttrial rulings confirm its partially fact-driven decision to withhold the

proposed necessity instructions. Upon denying defendant’s motion for a new trial, the court stated

its decision to bar the necessity instructions was based on “People v. Jackson, as well as all of the

information contained within the necessity information.” Clearly, then, the court’s ruling did not

stop at Jackson’s pronouncement; rather, it accounted for all of the evidence presented at trial. In

a subsequent ruling upholding defendant’s sentence, the court stated, “I didn’t see the necessity

defense in this particular situation.” Accordingly, beyond its reliance on Jackson, the court barred

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 defendant’s proposed necessity instructions based on what it found was a lack of substantiating

evidence.

¶ 54 Because the court ultimately considered the necessity defense under the facts of the case,

its decision to preclude the necessity defense on the State’s motion to reconsider did not deny

defendant “fundamental fairness such that continuation of the proceedings would defeat the ends

of justice.” Nelson, 235 Ill. 2d at 435. The ruling’s partial reliance on Jackson, even if improper,

did not undermine its independent factual basis and did not deprive defendant of a fair trial. See

People v. Gawlak, 2019 IL 123182, ¶ 39 (reviewing court may affirm on any basis in the record).

Stated differently, the court’s exclusion of the necessity instructions was inevitable, with or

without Jackson’s pronouncement. A mistrial was therefore not warranted. The issue thus

resolved, we see no reason to address defendant’s alternative argument that his counsel was

ineffective for failing to move for a mistrial. See People v. Stewart, 365 Ill. App. 3d 744, 750

(2006) (attorney is not ineffective for failing to pursue an unwarranted motion).

¶ 55 a. Exclusion of Necessity-Defense Instructions

¶ 56 Our analysis would not be complete without reviewing the factual basis for the court’s

exclusion of the necessity instructions. “A defendant is entitled to instructions on his theory of the

case when there is some foundation in the evidence for the instructions.” People v. Wicks, 355 Ill.

App. 3d 760, 763 (2005). “Only a slight amount of evidence is required to justify giving an

instruction.” Id. Conversely, the court may only withhold a necessity instruction when the evidence

is “so clear and convincing as to permit the court to find as a matter of law that there is no

affirmative defense.” Kucavik, 367 Ill. App. 3d at 181. “A trial court’s decision with regard to

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 issuing specific jury instructions is reviewed under an abuse of discretion standard.” Wicks, 355

Ill. App. 3d at 763.

¶ 57 The necessity defense hinges on two elements: (1) defendant’s blameless role in

occasioning the situation and (2) defendant’s reasonable belief that his otherwise illegal conduct

was necessary to avoid a greater injury. Janik, 127 Ill. 2d at 399. “This defense is viewed as

involving the choice between two admitted evils where other optional courses of action are

unavailable [citations], and the conduct chosen must promote some higher value than the value of

literal compliance with the law [citation].” Id. Further, a defendant seeking to raise the necessity

defense “must show that he faced a specific and immediate threat.” (Internal quotation marks

omitted.) Gullens, 2017 IL App (3d) 160668, ¶ 25.

¶ 58 Accepting defendant’s testimony as true, the trial lacked even slight evidence supporting a

necessity defense. First, defendant could not be deemed blameless when he occasioned the illegal

driving situation by instructing Tracy to switch seats so he could drive. This was not a situation,

for example, where the driver fell unconscious and defendant had no reasonable option but to

drive. Second, defendant did not drive to avoid a greater injury but, rather, to escape the “drama”

arising from an uncomfortable love-triangle confrontation. Defendant’s desire to escape drama,

without more, is an insufficient basis for a necessity defense.

¶ 59 Further, the evidence does not indicate defendant made a choice between two evils where

other optional courses of action were unavailable, nor does it indicate the promotion of a value

higher than literal compliance with the law. See Janik, 127 Ill. 2d at 399. Defendant himself

acknowledged that he “just wasn’t thinking” when he instructed Tracy to switch seats. His

testimony paints a picture of rash decision-making, not of necessity or the promotion of some

higher value. The video footage, moreover, demonstrates defendant did not consider Turner a

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 serious and immediate threat. See Gullens, 2017 IL App (3d) 160668, ¶ 25. Defendant never once

indicated to police, by words or actions, that he felt threatened by Turner. At one point in the video,

defendant is seen calmly handing Turner his phone. “If a defendant chooses to give an explanation

for his incriminating situation, he should provide a reasonable story or be judged by its

improbabilities.” People v. Hart, 214 Ill. 2d 490, 520 (2005). Quite simply, under no reading of

the facts would necessity be a viable defense.

¶ 60 When the court denied the State’s motion in limine, it did so expecting defendant to provide

evidence of the seriousness and immediacy of Turner’s threats against defendant and Tracy. Based

on defense counsel’s pretrial proffer, the court reasonably anticipated testimony of Turner’s

threatening knife display. By the close of evidence, however, no knife-related evidence had been

adduced, and no testimony had been introduced to suggest defendant faced a specific and

immediate threat such that his only reasonable alternative was to drive on a revoked license.

Because defendant’s own testimony failed to substantiate his pretrial evidence proffer, the trial

court properly denied the necessity instructions. The evidence before the court was so clear and

convincing as to permit the court to find, as a matter of law, that no necessity defense applied. See

Kucavik, 367 Ill. App. 3d at 181. Accordingly, its decision to withhold the proposed necessity

instructions was not an abuse of discretion.

¶ 61 2. Defendant’s Case Law Argument

¶ 62 Although the foregoing analysis conclusively resolves defendant’s mistrial contention,

defendant argues that established precedent compels a different conclusion. He directs our

attention to (1) Cooper, 66 Ill. App. 3d 205, which he contends is analogous to this case, and

(2) People v. Patrick, 233 Ill. 2d 62 (2009), which he maintains is “highly instructive.”

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¶ 63 a. People v. Cooper

¶ 64 In Cooper, the defendant took the stand after the court issued a “definitive ruling” barring

defendant’s impeachment by prior conviction evidence. Cooper, 66 Ill. App. 3d at 205-206.

Following the defendant’s testimony, the court allowed the State to impeach the defendant by a

prior conviction. Id. at 206. The jury returned a guilty verdict. Id. The appellate court reversed and

remanded for a new trial. Id. at 208. It held that “[t]he untimely revocation of the [court’s initial]

ruling was fundamentally unfair to the defendant and placed him in an untenable and prejudicial

position.” Id. at 207. The court explained that the initial ruling “afforded the defendant definitive

advance knowledge that he would not be subjected to impeachment.” (Emphasis added.) Id.

¶ 65 This case is distinguishable from Cooper. First, unlike in Cooper, the court’s trial ruling

foreclosing the necessity defense was not an “untimely revocation” of the court’s pretrial ruling.

See supra ¶ 51. At no point in the proceedings did the court provide defendant “definitive advance

knowledge” that it would deliver his proposed necessity-defense instructions to the jury. Quite the

contrary, the court “afford[ed] defendant actual notice that the matter would be reopened” at

instruction time. See Cooper, 66 Ill. App. 3d at 207. Upon denying the State’s motion in limine,

the court advised the parties that it was “certainly willing to allow information to come in and then

make a determination at the instruction time.” Thus, by later barring the necessity instructions, the

court was simply making its “determination at the instruction time.”

¶ 66 The distinctions go deeper, however, extending to defendant’s instigation of the very

events he now laments. In stark contrast to Cooper, defendant induced the court, by his proffer of

a knife threat, to provisionally allow his necessity defense. “[At] this time,” the court stated in its

pretrial ruling, “with the information that the Court’s been presented, the Court is going to deny

the motion in limine and consider granting that particular instruction at the appropriate time.”

18
 Defendant subsequently failed to testify about a knife threat, effectively creating an untenable and

prejudicial situation for himself. Any claim of fundamental unfairness falters on this fact alone.

¶ 67 In short, defendant’s reliance on Cooper is misplaced. The trial ruling barring his necessity

defense was neither an untimely revocation nor fundamentally unfair. Defendant’s proposed

instructions were never guaranteed, his testimony fell woefully short of the requisite “slight

evidence” standard, and he failed to substantiate the knife-threat proffer that induced the court to

consider his necessity defense in the first instance.

¶ 68 b. People v. Patrick

¶ 69 In the case defendant maintains is highly instructive, the defendant (Patrick) asserted self-

defense to a charge of first degree murder. Patrick, 233 Ill. 2d at 66, 75. Seeking to testify at his

jury trial, Patrick moved in limine to bar the State from impeaching him by prior conviction

evidence. Id. at 66. The trial judge refused to consider the motion until Patrick testified, explaining

this was his policy in all cases. Id. After Patrick testified, the court allowed the State to impeach

Patrick by three prior convictions for possession of a controlled substance. Id. In its closing

argument, the State repeatedly urged the jury not to believe a three-time convicted felon. Id. at 75-

76. The jury found Patrick guilty of second degree murder, and the appellate court affirmed. Id. at

67.

¶ 70 The supreme court reversed and remanded for a new trial. Id. at 76. It conducted a two-

step analysis to determine whether reversal was warranted. Id. at 74-76. First, it considered

whether the trial judge abused his discretion by delaying his ruling on the admissibility of prior

convictions until after the defendant had testified. Id. at 74-75. It quickly found the judge had

abused his discretion, noting that his “blanket refusal in every criminal case *** was arbitrary and

without reason.” Id. Second, the court considered whether the judge’s abuse of discretion—an

19
 error of constitutional magnitude—was harmless beyond a reasonable doubt. Id. at 75. The abuse

of discretion, it concluded, was not harmless where Patrick was substantially prejudiced by the

State’s “focused and repeated argument urging the jury not to believe a three-time convicted

felon.” Id. at 75-76. Observing that Patrick’s credibility was pivotal to his self-defense theory, the

court noted that the jury’s second degree murder verdict indicated “that, to some degree, the jury

believed Patrick was justified in his use of force.” Id. at 76. It opined, “If Patrick had known before

testifying that his prior convictions were going to be admitted, he may have decided not to testify,

or at least he could have informed the jury earlier of the prior convictions to lessen the negative

impact [on his credibility].” Id. at 75. Accordingly, the court found “Patrick was unjustifiably

required to make a tactical decision without the ability to evaluate the impact it would have on his

defense.” Id.

¶ 71 This case is markedly distinct from Patrick. We have already determined that the trial court

has not abused its discretion in barring defendant’s necessity defense. Unlike the trial judge’s

blanket deferral policy in Patrick, the court’s pretrial ruling here was not arbitrary or without

reason. Moreover, to the extent the court’s trial ruling erroneously relied on Jackson’s

pronouncement, it was sufficiently buttressed by a valid basis—namely, the want of evidence

supporting defendant’s necessity defense. We are not bound by the trial court’s reliance on Jackson

and may affirm on any basis supported by the record. Gawlak, 2019 IL 123182, ¶ 39. The court

neither abused its discretion in provisionally allowing the necessity defense, nor in ultimately

barring the defense. Accordingly, we need not advance to the second step of Patrick’s analysis,

which considers whether the court’s abuse of discretion was harmless beyond a reasonable doubt.

20
¶ 72 3. No Structural Error

¶ 73 In reaching our conclusion, we have reserved judgment on Jackson’s pronouncement and

assumed, consistent with defendant’s position, that necessity is a viable defense to DWLR. Supra

¶ 46. The dissent operates on the opposite assumption: that defendant’s necessity defense was

never viable under Jackson. Infra ¶ 109. Based on this foundation, the dissent argues the trial court

erred in “giv[ing] defendant the ultimately false ruling and impression that necessity was available

to him.” Infra ¶ 110. This, according to the dissent, amounted to structural error requiring

automatic reversal. We disagree.

¶ 74 A structural error impairs a trial’s framework, resulting in a trial that is “fundamentally

unfair or unreliable in determining guilt or innocence.” People v. Averett, 237 Ill. 2d 1, 12-13

(2010). Unlike an error in the trial process, a structural error typically results in “necessarily

unquantifiable and indeterminate” consequences. (Internal quotation marks omitted.) United

States v. Gonzalez-Lopez, 548 U.S. 140, 150 (2006). Accordingly, a structural error defies

harmless-error review and requires automatic reversal. Id. at 148; Averett, 237 Ill. 2d at 12, 14.

Only in a “very limited class of cases” has the United States Supreme Court deemed an error

structural. (Internal quotation marks omitted.) Averett, 237 Ill. 2d at 13. Those cases have included

“a complete denial of counsel, denial of self-representation at trial, trial before a biased judge,

denial of a public trial, racial discrimination in the selection of a grand jury, and a defective

reasonable doubt instruction.” Id. In determining whether an error is structural, Illinois courts will

often consider whether an error is comparable to these recognized structural errors. People v.

Moon, 2022 IL 125959, ¶ 30. If the defendant alleging constitutional error was represented by

counsel and tried by an impartial adjudicator, there is a “strong presumption” that harmless-error

review applies. (Internal quotation marks omitted.) Id. ¶ 28.

21
¶ 75 In support of its structural-error conclusion, the dissent maintains the trial court committed

error by improperly inducing defendant to waive his constitutional right against self-incrimination,

thereby resulting in his admission of guilt on the witness stand. See U.S. Const., amend. V (“No

person *** shall be compelled in any criminal case to be a witness against himself ***.”); Ill.

Const. 1970, art. I, § 10 (“No person shall be compelled in a criminal case to give evidence against

himself ***.”). We will accept this premise as true for the sake of argument. 4 Our supreme court

has emphasized that self-incrimination is only unconstitutional when compelled:

“ ‘[T]here is no such thing as a constitutional privilege against self-incrimination.

There is a privilege only against compelled self-incrimination. The key element is

compulsion. The core purpose of the privilege is not to protect a defendant against

self-incrimination generally nor even to guard a defendant against foolish and ill-

advised self-incrimination; it is to shield a defendant against governmental

coercion.’ ” (Emphasis in original.) People v. Hall, 195 Ill. 2d 1, 25 (2000) (quoting

Ross v. State, 552 A.2d 1345, 1347 (Md. Ct. Spec. App. 1989)).

¶ 76 Defendant’s waiver of his right to remain silent was not the result of compulsion or

coercion. (In fact, defendant does not allege a violation of his right to silence.) Absent compulsion

or coercion, we hesitate to extend the structural-error doctrine to the trial court’s rulings. We

further decline to view the court’s rulings in a vacuum. Defendant induced the trial court’s pretrial

ruling and made a strategic decision to prevent the State from controlling the narrative at trial.

Defendant’s decision to admit fault, made in consultation with his attorney, was necessarily linked

4
Although we accept this premise for argument’s sake, we observe that it overstates the judge’s
role in our adversarial system. The trial court cannot be said to have caused defendant to rely on a
(presumably) flawed legal position when (1) defendant, by his counsel, urged the court to adopt that
position, and (2) neither party alerted the court to Jackson’s one-sentence pronouncement until the trial was
well under way.

22
 to the weight of the evidence against him. Unlike the structural errors recognized by the U.S.

Supreme Court, each of which infect the trial’s framework, the court’s error in this case was

confined to the presentation of evidence. This is not to say the error was insignificant; it merely

demonstrates the error’s amenability to harmless-error review.

¶ 77 This case is unlike Moon, in which our supreme court held that the failure to administer a

jury oath in a criminal trial constitutes structural error. Moon, 2022 IL 125959, ¶ 60. The court

explained that “swearing the jury is part of the very framework within which the trial proceeds.”

Id. ¶ 66. Here, in contrast, a misinformed decision to testify is a matter of trial strategy, strictly

tied to the trial process. Defendant’s decision to testify based on an erroneous ruling in his favor,

not knowing whether he would “get away with it,” is more akin to Patrick’s decision to testify not

knowing whether the court would allow the State to impeach him with prior conviction evidence.

See Patrick, 233 Ill. 2d at 66. In both circumstances, the defendant’s gamble did not alter the

constitutional framework of the trial. See Averett, 237 Ill. 2d at 14 (“This court’s application of

harmless-error review in Patrick demonstrates that we did not treat the error as structural.”).

¶ 78 Moreover, where the consequences of the court’s error are quantifiable and determinate,

the structural-error doctrine is inapplicable. See Gonzalez-Lopez, 548 U.S. at 150. In Moon, the

court based its structural-error holding, in part, on “ ‘the difficulty of assessing the effect of the

error.’ ” Moon, 2022 IL 125959, ¶ 66 (quoting Gonzalez-Lopez, 548 U.S. at 149 n.4). The court

explained that the “effect of a complete failure to administer a jury oath is difficult, if not

impossible, to measure because the error concerns the subjective frame of mind of the individual

jurors.” Id. Here, in contrast, measuring the effect of the trial court’s error is a straightforward,

objective analysis; it does not require a “ ‘speculative inquiry into what might have occurred in an

alternate universe.’ ” Id. ¶ 65 (quoting Gonzalez-Lopez, 548 U.S. at 150 (discussing futility of

23
 subjecting structural error to harmless-error analysis)). By barring defendant’s necessity defense

following his testimony, the trial court left his incriminating statements unmitigated by the defense

he had hoped to present. A harmless-error analysis is perfectly suited for this situation. Indeed,

where defendant has not alleged denial of representation or trial by a biased adjudicator, a “strong

presumption” exists in favor of harmless-error review. See id. ¶ 28. Accordingly, granting the

premise that the trial court erred by giving defendant the false ruling and impression that necessity

was a viable defense, we fail to see structural error. We now assess whether the court’s error, a

non-structural error, was harmless beyond a reasonable doubt.

¶ 79 a. Harmless-Error Analysis

¶ 80 Where a constitutional error is at issue, the State bears the burden of proof to show beyond

a reasonable doubt that the error did not affect the outcome of the proceeding. Mullins, 242 Ill. 2d

at 23. “In other words, the inquiry is whether the defendant would have been convicted regardless

of the error.” (Internal quotation marks omitted.) Id. “In determining whether, in the absence of

the error, the outcome of the trial would have been different, review is made of the proceedings as

a whole, based upon examination of the entire record.” Id.

¶ 81 Both elements of DWLR are clearly supported by the record, independent of defendant’s

testimony. First, evidence of defendant’s revoked status was incontrovertible. Lamb’s testimony

that defendant acknowledged his revoked status was corroborated by defendant’s driving abstract

and defendant’s audible admission in the dashcam footage.

¶ 82 Second, the record overwhelmingly identifies defendant as the Cadillac’s driver. Although

the video does not show defendant exiting the Cadillac, it shows him walking around the front of

the Cadillac from the driver’s side of the vehicle and later return to retrieve items from the driver’s

seat area. At no point in the dashcam video footage does defendant deny driving the Cadillac.

24
 When Lamb rebukes defendant for nearly colliding with his police car, defendant acknowledges

his conduct and explains he was being chased by Turner. Notably, the video shows Lamb peer into

the Cadillac during the first minute of the encounter yet proceed to berate defendant for nearly

colliding with his vehicle. Lamb’s inspection of the Cadillac’s interior apparently revealed no other

potential driver. Despite the lack of direct evidence, Lamb’s testimony and the dashcam footage

overwhelmingly point to defendant as the Cadillac’s driver. The jury had no reason to conclude

otherwise. “A conviction can be sustained upon circumstantial evidence as well as upon direct,

and to prove guilt beyond a reasonable doubt does not mean that the jury must disregard the

inferences that flow normally from the evidence before it.” People v. Williams, 40 Ill. 2d 522, 526

(1968). In short, we have no doubt that the jury verdict would have been the same, irrespective of

defendant’s decision to testify.

¶ 83 As demonstrated here, harmless-error review does not require “speculative inquiry into

what might have occurred in an alternate universe.” Gonzalez-Lopez, 548 U.S. at 150. To the extent

the trial court erred, its error was harmless beyond a reasonable doubt.

¶ 84 4. Conclusion

¶ 85 The pretrial ruling provisionally allowing the necessity defense and the trial ruling barring

the defense conflicted only insofar as the trial ruling relied on Jackson. The rulings were otherwise

consistent with each other. Because the trial ruling was sufficiently based in evidentiary

considerations, it did not amount to an abuse of discretion.

¶ 86 Alternatively, assuming the necessity defense was never available to defendant, the court’s

error was not structural, and moreover, it was harmless beyond a reasonable doubt.

¶ 87 In so ruling, we acknowledge the highly irregular circumstances underlying this appeal.

Defendant’s trial was by no means perfect. “However, a defendant is entitled to a fair trial, not a

25
 perfect one.” People v. Griffin, 178 Ill. 2d 65, 90-91 (1997). Despite the irregularities, defendant

was not deprived of fundamental fairness. See Nelson, 235 Ill. 2d at 435. A mistrial was therefore

not warranted.

¶ 88 C. Improper Definition of Reasonable Doubt

¶ 89 Next, defendant argues that the prosecutor’s “nonsensical” definition of reasonable doubt

during closing argument constitutes reversible error. Whether a prosecutor’s improper argument

constitutes reversible error is a purely legal question that we review de novo. People v. Sullivan,

2014 IL App (3d) 120312, ¶ 26. Defendant forfeited this claim by failing to raise it in the trial

court. People v. Sebby, 2017 IL 119445, ¶ 48. Still, we may consider a forfeited claim where the

defendant 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 show that a clear or obvious error occurred.

People v. Galarza, 2023 IL 127678, ¶ 45. If an error has occurred, we will only reverse if (1) “the

evidence is so closely balanced that the error alone threatened to tip the scales of justice against

the defendant” 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.” Id.

¶ 90 Here, the State committed a clear and obvious error when it attempted to define reasonable

doubt for the jury. “[N]either the trial court nor counsel should define reasonable doubt for the

jury.” People v. Downs, 2015 IL 117934, ¶ 19; see People v. Davis, 406 Ill. 215, 220 (1950)

(“[R]easonable doubt needs no definition and it is erroneous to give instructions resulting in an

elaboration of it.”). Here, despite the court advising prospective jurors they “will not be told the

meaning or definition of ‘beyond a reasonable doubt,’ ” the State advised the jury that reasonable

doubt “means the State has to prove that there was [sic] no other reasonable alternatives for the

actions that the defendant took on August 15th, 2018.”

26
¶ 91 Defendant argues the State’s improper definition of reasonable doubt constitutes second-

prong plain error because it is so serious that it affected trial fairness. We disagree.

¶ 92 “[A] prosecutor’s attempt to define reasonable doubt constitutes plain error only when it

causes substantial prejudice to the defendant.” Sullivan, 2014 IL App (3d) 120312, ¶ 30. Courts

have found substantial prejudice when the reasonable-doubt definition (1) suggests the State has

no burden of proof or attempts to shift that burden to the defendant, (2) reduces the State’s burden

of proof to a minor detail, or (3) constitutes an involved instruction on reasonable doubt. People

v. Howell, 358 Ill. App. 3d 512, 524 (2005). “Reviewing courts will consider the closing argument

as a whole, rather than focusing on selected phrases or remarks.” People v. Perry, 224 Ill. 2d 312,

347 (2007).

¶ 93 The State’s definition, though erroneous, did not substantially prejudice defendant. First,

the definition did not suggest the State has no burden of proof or attempt to shift that burden to

defendant. In fact, just before he offered the definition, the prosecutor acknowledged that “[t]he

State has the burden of proof in this case.” Second, the State did not reduce its burden to a minor

detail. After offering the erroneous definition, the prosecutor underscored the State’s burden of

proof:

“Now the State has to prove beyond a reasonable doubt that the Defendant

committed the offense of driving on a revoked license, had to prove three things[:]

[t]hat the Defendant drove on a public highway in Peoria County—in Peoria

County, and the third, that at the time he was driving, his license was revoked.”

These follow-up remarks reoriented the jury to the correct burden of proof, without diminishing

the State’s burden. Finally, the improper definition was not an “involved instruction” such that it

warranted reversal. See, e.g., People v. Viser, 62 Ill. 2d 568, 585 (1975) (improper definition was

27
 not “involved” and thus not reversible error where it described reasonable doubt as “ ‘substantial

rather than speculative’ ” and defined it as “ ‘sufficient to cause a reasonably prudent person to

hesitate to act in the more important affairs of his life’ ”). Accordingly, where defendant was not

substantially prejudiced, the State’s attempt to define reasonable doubt does not constitute plain

error. Sullivan, 2014 IL App (3d) 120312, ¶ 30.

¶ 94 Ironically, the State’s improper definition was to defendant’s advantage; it legitimized

defendant’s necessity defense despite the court’s decision to bar the defense. By indicating it

needed to prove there were no reasonable alternatives for defendant’s actions, the State essentially

asked jurors to consider whether defendant’s conduct was justified by necessity. See Janik, 127

Ill. 2d at 399 (necessity defense involves “choice between two admitted evils where other optional

courses of action are unavailable”). The improper definition thus resulted in an extra burden on

the State alongside its existing burden to prove the requisite elements of DWLR. See supra ¶ 93.

Though improper, this added burden did not undermine trial fairness or challenge the integrity of

the judicial process. Accordingly, defendant’s claim does not survive forfeiture.

¶ 95 D. Enhanced Sentence

¶ 96 Finally, defendant contends the trial court erred when it sentenced him to an eight-year

prison term based on an enhanced Class 2 felony DWLR charge. In particular, defendant argues

the State presented no evidence to demonstrate his underlying revocation was due to a DUI

conviction or that 15 or more of his prior DWLR convictions occurred when his driver’s license

was suspended or revoked based on a violation of section 11-501(a) of the Code (625 ILCS 5/11-

501(a) (West 2018)).

¶ 97 Although defendant did not preserve this issue for appeal, the right to be lawfully sentenced

is a substantive right, affecting the “fundamental right to liberty.” People v. Smith, 2016 IL App

28
 (1st) 140496, ¶ 15. Accordingly, we may review this issue for second-prong plain error. See

Galarza, 2023 IL 127678, ¶ 45 (second-prong error is one that affects trial fairness and challenges

the integrity of the judicial process). In the sentencing context, “an error is reversible under the

second prong where that error was so egregious as to deny the defendant a fair sentencing hearing.”

(Internal quotation marks omitted.) People v. Mitok, 2018 IL App (3d) 160743, ¶ 8.

¶ 98 The prosecution must prove defendant’s eligibility for an enhanced sentence by a

preponderance of the evidence. People v. Robinson, 167 Ill. 2d 53, 71-73 (1995). For any

prosecution under section 6-303 of the Code, “a certified copy of the driving abstract of the

defendant shall be admitted as proof of any prior conviction.” 625 ILCS 5/6-303(f) (West 2018).

¶ 99 Under section 6-303(d-5), a person convicted of a fifteenth or subsequent DWLR offense

is guilty of a Class 2 felony if (1) “the current violation occurred when the person’s driver’s license

was suspended or revoked for a violation of Section 11-401 or 11-501 of this Code,” and (2) “the

prior convictions under this Section occurred while the person’s driver’s license was suspended or

revoked for a violation of Section 11-401 or 11-501 of this Code.” Id. § 6-303(d-5).

¶ 100 The record indicates the trial court simply assumed the charged offense was properly

classified as a Class 2 felony due to “so many [prior] violations.” Section 6-303(d-5) indicates,

however, that such a classification is only proper if the prior violations are based on a suspension

or revocation under section 11-401 or 11-501 of the Code. Based on defendant’s indictment, only

section 11-501 (mandating license revocation for DUI violations) applies here. The State submitted

to the trial court a driving abstract indicating only that “[r]evocation was in effect on 08-15-2018,”

along with a PSI listing 43 prior convictions of driving while license revoked or suspended.

Crucially, neither document indicates the basis for defendant’s most recent license revocation. The

record, moreover, does not reflect that the trial court found, by a preponderance of the evidence,

29
 that defendant’s relevant license revocation was based on a DUI conviction under section 11-501.

Accordingly, defendant’s Class 2 felony enhancement was improper.

¶ 101 The State acknowledges it failed to provide the trial court a factual basis for applying

section 6-303(d-5)’s enhancement factors. It objects, however, to defendant’s request that this

court reduce defendant’s conviction to a Class A misdemeanor, arguing there is a need for “further

research into the bases for defendant’s suspension(s) and revocation(s) and what convictions

followed those events.” The State therefore urges us to remand for a new sentencing hearing.

¶ 102 Defendant, on the other hand, argues we can resolve this classification issue by simply

reviewing the PSI. According to defendant, the PSI indicates that the license revocation relevant

to the instant offense is not based on a section 11-501 violation. The PSI, defendant argues,

indicates he was convicted of a DUI offense only once—in a 2003 case. He was subsequently

convicted of DWLR in 2003 and 2004, and later convicted of driving while license suspended in

a 2005 case, and once again in a 2007 case. In essence, defendant argues we can infer, based on

the suspension of his license following its revocation, that he obtained a new license at some point

after his DUI conviction. He reasons, “Surely a revoked (nonexistent) license cannot be

suspended.”

¶ 103 A PSI “is generally a reliable source for the purpose of inquiring into a defendant’s criminal

history.” People v. Williams, 149 Ill. 2d 467, 491 (1992). In this case, however, where defendant

has failed to bring his argument to the attention of the trial court, we decline to draw any

conclusions based solely on the PSI. We instead remand for the trial court to determine defendant’s

DWLR conviction classification and to allow the parties to supplement the record for purposes of

that determination.

30
¶ 104 III. CONCLUSION

¶ 105 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed

as to defendant’s conviction for driving while license revoked. However, because the conviction’s

Class 2 felony classification has not been established, defendant’s eight-year sentence is vacated,

and the cause is remanded for the trial court to determine defendant’s eligibility for a Class 2 felony

sentence.

¶ 106 Affirmed in part and vacated in part; cause remanded.

¶ 107 JUSTICE PETERSON, concurring in part and dissenting in part:

¶ 108 I cannot join the majority in affirming defendant’s conviction because I believe the court’s

error in reversing its decision that the necessity defense was available as a defense to DWLR after

defendant had already testified is structural error and requires automatic reversal. Illinois courts

have equated second-prong plain error with structural error, and “[a]n error is typically designated

as structural only if it necessarily renders a criminal trial fundamentally unfair or is an unreliable

means of determining guilt or innocence.” People v. Moon, 2022 IL 125959, ¶ 28. Such errors

have also been said to “erode the integrity of the judicial process and undermine the fairness of the

defendant’s trial.” People v. Herron, 215 Ill. 2d 167, 186 (2005). In determining whether an error

is structural, we are not limited to those errors identified by the United States Supreme Court as

structural. Moon, 2022 IL 125959, ¶¶ 29-30 (structural errors include “a complete denial of

counsel, denial of self-representation at trial, trial before a biased judge, denial of a public trial,

racial discrimination in the selection of a grand jury, and a defective reasonable doubt instruction”).

If “structural error is found, automatic reversal is required.” Id. ¶ 74 (citing Herron, 215 Ill. 2d at

186-87).

31
¶ 109 “A defendant’s right to testify at trial is a fundamental constitutional right, as is his or her

right to choose not to testify.” People v. Madej, 177 Ill. 2d 116, 145-46 (1997).

“ ‘[The Fifth Amendment’s privilege against self-incrimination] is fulfilled only when an

accused is guaranteed the right “to remain silent unless he chooses to speak in the

unfettered exercise of his own will.” … The choice of whether to testify in one’s own

defense … is an exercise of the constitutional privilege.’ ” Rock v. Arkansas, 483 U.S. 44,

53 (1987) (quoting Harris v. New York, 401 U.S. 222, 230 (1971) (Brennan, J., dissenting,

joined by Douglas and Marshall, JJ.), quoting Malloy v. Hogan, 378 U.S. 1, 8 (1964)).

Here, defendant chose to testify and admit that he was driving the vehicle because the court ruled

that necessity was a defense available under the law when denying the State’s pretrial motion.

However, after defendant testified and admitted to the elements of the offense, which is required

for the necessity defense, the court reversed its pretrial ruling and held that necessity was not

available as a defense. The court based its reversal upon dicta in our supreme court’s opinion in

People v. Jackson, 2013 IL 113986, that driving while license revoked is a strict liability offense

and that the defense of necessity is not available. Although the dicta in Jackson was unnecessary

for the decision, and one might argue there is contradictory authority from our supreme court (see

People v. Kite, 153 Ill. 2d 40, 44 (1992) (indicating that necessity can be raised as an affirmative

defense to a strict liability offense)), assuming arguendo, that it is precedential, this case must

nonetheless be reversed.

¶ 110 Had the court not given defendant the ultimately false ruling and impression that necessity

was available to him, he would have known the only result that could come from his testimony

that he was driving would be a conviction. At the time he chose to testify, he was under the

impression that admitting to driving and explaining the circumstances that led him to drive could

32
 result in the jury acquitting him based upon the defense of necessity. Essentially, the court created

an untenable situation wherein defendant believed it to be beneficial to give up his constitutional

right against self-incrimination in order to present the defense of necessity, and then eliminated

the only potential benefit by ruling that necessity was unavailable pursuant to Jackson. Under these

circumstances, I cannot say that defendant gave up his fundamental right not to testify in the

unfettered exercise of his own free will. Instead, he was induced by the court’s pretrial ruling that

the necessity defense was available. I would also conclude that reversal is required. This is because,

under the bizarre circumstances presented, defendant not only gave up his right to remain silent

but provided the only direct evidence of an element of the State’s case—that he was driving. The

waiver of a fundamental constitutional right, resulting in an admission to an element of the State’s

case due to the trial court’s two mutually exclusive rulings, leads to the conclusion that the trial

process was defective in this case and the fairness of defendant’s trial was clearly undermined. It

was fundamentally unfair for the court to induce defendant into testifying by its ruling and then

make an untimely revocation of that ruling after the State gained the benefit of defendant’s

testimony. See People v. Cooper, 66 Ill. App. 3d 205, 207-08 (1978) (reversing defendant’s

conviction where the circuit court initially ruled that his prior conviction could not be used for

impeachment purposes but reversed that decision after defendant testified and stating “[t]he

untimely revocation of the prior ruling was fundamentally unfair to the defendant and placed him

in an untenable and prejudicial situation”).

¶ 111 I further note that it is immaterial that the court advised defendant that it would wait to

make a determination as to whether to give the necessity instruction until after the evidence was

presented. This, again, gave defendant the impression that if he put forth sufficient evidence

regarding necessity, that he would be entitled to the instruction. At that point, although the court

33
 did not guarantee he would get the necessity instruction, defendant obviously believed it was worth

the risk to forgo his right to remain silent and instead testify in regard to the facts he believed

established a necessity defense. However, had the court granted the State’s motion before trial and

ruled that the necessity defense was unavailable as a matter of law pursuant to Jackson, he would

have known there was no potential benefit in testifying that he was driving. The defendant clearly

would have exercised his constitutional right to remain silent. Defendant could then have held the

State to its burden of proving beyond a reasonable doubt that he was driving without any direct

evidence that he was driving. In this case, the officer was operating under an assumption that

defendant was the driver, as evidenced by his testimony that he did not see defendant driving, and

he did not recall defendant ever stating he was driving.

¶ 112 At the beginning of his trial, defendant had two options to choose from to defend his case,

which invoked constitutional rights. He could exercise his right to remain silent and challenge the

State’s evidence and its ability to prove the charge beyond a reasonable doubt. Alternatively, he

could choose to testify and explain the facts and circumstances he and his attorney believed would

support the jury receiving the necessity instruction and possible acquittal based on that defense.

The procedure followed by the court eliminated both options in their entirety in one fell swoop

after the defendant chose the necessity defense and decided to waive his right to remain silent.

This process guaranteed his conviction and cannot stand.

¶ 113 The majority concludes that the defendant’s conviction would have been a foregone

conclusion if he had opted to remain silent and challenge the State’s ability to satisfy its burden of

proof. On this record I disagree. Further, we will never know what evidence or examination the

defense may have offered to cast doubt on the State’s assertion that defendant was the driver had

he known the court’s ultimate ruling on the necessity defense before trial. I would hold that the

34
 error of ruling on a pivotal pretrial legal issue such as the availability of an affirmative defense

after the evidence has been presented, and in such a way as to guarantee defendant’s conviction,

should be added to the list of examples of structural error in Illinois jurisprudence.

¶ 114 As I agree with the majority decision regarding the sentencing issue, I partially concur in

the decision. However, I respectfully dissent from the affirmance of defendant’s conviction.

35
 People v. Brown, 2023 IL App (3d) 210460

Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 18-CF-787;
the Hon. Alicia Washington, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Karalis, and Dimitri Golfis, of State
for Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:

Attorneys Jodi Hoos, State’s Attorney, of Peoria (Patrick Delfino, Thomas
for D. Arado, and Justin A. Nicolosi, of State’s Attorneys Appellate
Appellee: Prosecutor’s Office, of counsel), for the People.

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