People v. Mister

2014 IL App (5th) 120079, ¶ 30

- 19 - ¶ 46 Under the silent witness theory, a surveillance video may be admissible as

substantive evidence in the absence of authentication by an eyewitness with personal knowledge

of the content if there is adequate proof of the reliability of the process that produced the

recording. Taylor,

2011 IL 110067, ¶ 35

956 N.E.2d 431

. Under this theory, it is not necessary

for a witness to testify to the accuracy of the images depicted in the video so long as the accuracy

of the process used to produce the evidence is established with an accurate foundation. Id. ¶ 32,

956 N.E.2d 431

. This is so because the evidence is " 'received as a so-called silent witness or as

a witness which "speaks for itself." ' "

Id.

(quoting Jordan S. Gruber, Foundation for

Contemporaneous Videotape Evidence, in 16 Am. Jur. Proof of Facts 3d 493, § 5, at 508 (1992)).

¶ 47 In this case, defendant does not challenge the admissibility of the surveillance

videos or the still photographs as substantive evidence. Rather, he contends he was denied a fair

trial because the trial court permitted Simmons, who lacked personal knowledge, to narrate the

events depicted in the surveillance videos. Defendant argues this testimony invaded the province

of the jury and, therefore, requires a new trial.

¶ 48 a. Illinois Decisions Addressing Lay Opinion Testimony

¶ 49 Effective January 1, 2011, Illinois adopted rules of evidence. Generally, a witness

must testify only to facts based on personal knowledge. Ill. R. Evid. 602 (eff. Jan. 1, 2011). A

witness may give opinion testimony if it is (1) rationally based on the perception of the witness

and (2) helpful to a clear understanding of the testimony or determination of a fact in issue. Ill.

R. Evid. 701 (eff. Jan. 1, 2011). A witness may not offer opinion testimony regarding an

ultimate question of fact to be decided by the jury. However, testimony is not objectionable

simply because it embraces an ultimate issue the trier of fact must decide. Ill. R. Evid. 704 (eff.

Jan. 1, 2011); People v. Thompson,

2013 IL App (1st) 112632, ¶ 41

(Rule 704 has

- 20 - been interpreted to permit opinion testimony on an ultimate issue where it is of assistance to the

trier of fact.).

¶ 50 For instance, we have held a witness acquires personal knowledge where he or

she observes an incident, at the time it occurred, through a live video feed. People v. Tomei,

986 N.E.2d 158

. We explained a witness's testimony about

what he or she observed on a live video feed is no different than if he or she "had been 100 yards

away from defendant at the time of the incident but they needed a telescope to observe what was

happening. As long as the telescope was functioning properly, we see no reason why they would

not be able to testify as to what they observed." People v. Tharpe-Williams,

286 Ill. App. 3d 605, 611

676 N.E.2d 717, 721

(1997).

¶ 51 Moreover, Illinois has long allowed identification testimony by witnesses who did

not personally observe events depicted in a video recording. People v. Starks,

119 Ill. App. 3d 21, 25

456 N.E.2d 262, 265

(1983). In establishing the standard for admission of such

testimony, Illinois looked to the Federal Rules of Evidence and procedures adopted by other

jurisdictions.

¶ 52 In Starks, a case tried prior to Illinois's adoption of the rules of evidence, we

found no error where the trial court admitted testimony from several correctional officers who

identified defendants involved in a prison riot after viewing a videotape of the riot.

The

officers were familiar with the defendants and had seen the defendants on many occasions prior

to the riot.

Id. at 26

456 N.E.2d at 265

. Additionally, the defendants were in the background of

the video, making it difficult for the jurors to make the identification. Since the officers were

familiar with the defendants' mannerisms and body movements, it was easier for them to identify

the defendants than it was for the jurors.

Id. at 26

456 N.E.2d at 266

. Relying on two decisions

- 21 - from California and one from Washington, we concluded identification testimony was an

appropriate aid to the trier of fact in instances where the surveillance did not render a clear

depiction.

Id. at 25-26

456 N.E.2d at 265

(citing People v. Mixon,

180 Cal. Rptr. 772

(Cal. Ct.

App. 1982), People v. Perry,

131 Cal. Rptr. 629

(Cal. Ct. App. 1976), and State v. Jamison,

613 P.2d 776

(Wash. 1980)). Based on Mixon, Perry, and Jamison, we determined the officers'

testimony "was rationally based upon the witnesses' personal knowledge of the defendants before

the occurrence and their perception of what they saw in the videotapes." Id. at 26,

456 N.E.2d at 266

. The officers' testimony helped the jury resolve the issue of identification and did not invade

the province of the jury.

2014 IL App (5th) 120079, ¶ 29

¶ 53 Various panels of our appellate court have read Starks as establishing a two-part

test: identification testimony of a lay witness who has no personal knowledge of the events

depicted on a videotape is admissible where (1) the witness is familiar with the defendant prior to

the offense and (2) the testimony aids the trier of fact in resolving the issue of identification and

does not invade the jury's fact-finding duties. Thompson,

2012 IL App (4th) 111110, ¶ 35

(citing Starks,

119 Ill. App. 3d at 25

456 N.E.2d at 265

, Sykes,

394 Ill. App. 3d 147, 154

, and People v. Owens,

914 N.E.2d 1280, 1286

(2009)). Appellate decisions have found two situations where testimony is helpful to

the trier of fact: "The first type of situation is where a defendant's appearance has changed

between the time of the recording and date of trial. The second category is where the video is an

unclear or limited depiction." Thompson,

2014 IL App (5th) 120079, ¶ 29

2012 IL App (4th) 111110, ¶ 37

¶ 54 For example, in Sykes,

, a case

cited by defendant, we applied Starks to hold a loss-prevention manager's testimony violated the

silent witness theory of admissibility. There, the manager lacked firsthand knowledge of the

- 22 - events depicted on the video because he reviewed surveillance footage after the theft occurred.

Additionally, since the video was only three minutes in duration and defendant was the only

person portrayed in the video, we found the manager was in no better position to determine

whether defendant removed money from the register, and, thus, his opinion testimony invaded

the province of the jury. Id. ¶ 42,

2014 IL App (5th) 120079, ¶ 30

¶ 55 As noted above, Illinois adopted its own rules of evidence effective January 1,

2011. The Fifth District recently held "Starks' interpretation of the Federal Rules of Evidence is

consistent with the subsequently enacted Illinois rules." Thompson,

. The Fifth District reiterated the rule in Starks as follows:

"Starks would allow witnesses to identify a defendant from a

recorded image if his appearance had changed or the image was

unclear. Starks found that in such instances, the identifications

were an aid to the jury. On the other hand, if the standards of

Starks are not met, such an opinion would serve no utility and the

province of the jury is invaded." Id. ¶ 40,

131 Cal. Rptr. 3d 911, 917-18

(citing

Starks,

119 Ill. App. 3d at 26

456 N.E.2d at 266

¶ 56 As discussed in more detail below, we find it significant the Fifth District reached

its conclusion without looking to federal law for guidance. While federal law is, of course, only

persuasive authority on the issue before us, the language employed in Illinois Rules 701 and 704

is identical to Federal Rules 701 and 704(a). Moreover, Thompson's narrow reading of Starks'

so-called "two-part" test goes beyond the precedential scope of the decision. See People v. Flatt,

82 Ill. 2d 250, 261

412 N.E.2d 509, 515

(1980) ("It is well settled that the precedential scope of

a decision is limited to the facts before the court."). In any case, we are not required to follow

- 23 - the decisions of sister districts or, for that matter, our own prior decisions. O'Casek v. Children's

Home & Aid Society of Illinois,

229 Ill. 2d 421, 440

892 N.E.2d 994, 1006-07

(2008). We

further note Starks relied on appellate decisions from California and Washington to support its

holding. We decline to follow the Fifth District's holding in Thompson because the analysis

ignores how cases interpreting the federal rules of evidence have changed during the past 30

years.

¶ 57 b. Decisions From Other Jurisdictions Regarding Lay Opinion Testimony

¶ 58 Since Illinois Rules of Evidence 701 and 704 (eff. Jan. 1, 2011) are identical to

Federal Rules of Evidence 701 and 704(a) (eff. Dec. 1, 2011), we turn to federal jurisdictions for

guidance.

¶ 59 A significant majority of jurisdictions which have addressed lay opinion

testimony have held a lay witness may testify regarding the identity of a person depicted in a

surveillance video if there is some basis for concluding the witness is more likely to correctly

identify the defendant from the videotape than the jury. See, e.g., United States v. Jackman,

48 F.3d 1

(1st Cir. 1995); United States v. Henderson,

68 F.3d 323

(9th Cir. 1995); United States v.

Stormer,

938 F.2d 759

(7th Cir. 1991); United States v. Allen,

787 F.2d 933

(4th Cir. 1986),

judgment vacated on other grounds, Allen v. United States,

479 U.S. 1077

(1987); United States

v. Farnsworth,

729 F.2d 1158

(8th Cir. 1984); United States v. Borrelli,

621 F.2d 1092

(10th Cir.

1980); United States v. Pierce,

136 F.3d 770

(11th Cir. 1998). A small minority of jurisdictions

have disfavored the admission of lay opinion testimony regarding the identity of a person

depicted in surveillance video. United States v. Calhoun,

544 F.2d 291

(6th Cir. 1976); see also

United States v. Robinson,

544 F.2d 110

, 113 n.4 (2d Cir. 1976) (stating "it is not improper to

exclude the testimony of lay witnesses asked to render an opinion whether the individual in a

- 24 - bank photograph is the defendant"). However, even the minority of jurisdictions have not

adopted a per se rule excluding such lay opinion testimony.

¶ 60 Among the courts in the majority, a few have based the admission of lay opinion

testimony on whether defendant's appearance in the videotape was different from his appearance

at trial. Farnsworth,

729 F.2d at 1160

; Borrelli,

621 F.2d at 1095

. However, other courts have

explicitly rejected a change in the defendant's appearance as a requirement for admitting lay

opinion testimony. Stormer,

938 F.2d at 761

; Allen,

787 F.2d at 936

. Those courts which do not

require a change in the defendant's appearance have reasoned the evidentiary rule only requires

lay opinion testimony be "helpful" to the jury, and such testimony is helpful even when the

defendant's appearance has not changed. Stormer,

938 F.2d at 761

; Allen,

787 F.2d at 936-37

These courts also note an unclear image may make a lay witness's opinion testimony particularly

helpful in identifying the person in the surveillance videotape.

¶ 61 Various jurisdictions among the majority have further differed on the level of

familiarity the witness must have with the defendant. In United States v. Jackson,

688 F.2d 1121, 1125

(7th Cir. 1982), the Seventh Circuit Court of Appeals held a lay witness's opinion as

to the identity of the defendant in a surveillance photograph was proper even though the witness

had only met the defendant once at a Christmas party. See also United States v. Axselle,

604 F.2d 1330, 1338

(10th Cir. 1979) (a single telephone call, combined with hearing a voice in

court, is sufficient for voice identification testimony to go to the jury); United States v. Zepeda-

Lopez,

478 F.3d 1213, 1220, 1222

(10th Cir. 2007) (Federal Bureau of Investigation agent's

testimony was helpful to the jury where he looked at the video "many times" in forming his

opinion that defendant was depicted in the video); United States v. Kornegay,

410 F.3d 89, 95

(1st Cir. 2005) (contact with the defendant six times within a few months was sufficient for the

- 25 - detective to identify defendant in surveillance pictures); United States v. Beck,

418 F.3d 1008, 1015

(9th Cir. 2005) (witness sufficiently familiar with defendant to offer identification

testimony of defendant in surveillance video where he had met with him four times). In

Henderson,

68 F.3d at 326

, the Ninth Circuit Court of Appeals held: "Instead of any particular

amount of sustained contact, we require a lay witness to have sufficient contact with the

defendant to achieve a level of familiarity that renders the lay opinion helpful." However, the

Ninth Circuit excluded lay witness testimony in United States v. LaPierre,

998 F.2d 1460, 1465

(9th Cir. 1993), holding the lay witness did not have sufficient contact with the defendant where

the witness had never seen the defendant in person and was familiar with his appearance only

through other photographs and witness's descriptions.

¶ 62 In general, "courts have been liberal in determining the extent of perception

required to satisfy the first requirement of Rule 701." United States v. Bush,

405 F.3d 909, 916

(10th Cir. 2005). All courts among the majority agree a lay witness who has sufficient

familiarity with the defendant may properly testify as to the identity of the defendant in a

surveillance videotape. Moreover, several jurisdictions agree that whether a lay witness's prior

contacts with the defendant are extensive enough to permit a proper identification is a matter of

weight for the jury, not admissibility. United States v. Wright,

904 F.2d 403, 405

(8th Cir.

1990); Allen,

787 F.2d at 936

; Jackson,

688 F.2d at 1125

¶ 63 In United States v. Begay,

42 F.3d 486, 502

(9th Cir. 1994), a case cited by the

State, an officer provided narrative testimony regarding a video of a demonstration involving

approximately 200 demonstrators which resulted in violence. The officer reviewed the video

over 100 times, copied portions of the video in slow motion, magnified and enhanced its quality

to help identify the individuals depicted, and assessed more than 800 photographs taken during

- 26 - the incident. He then added circles and arrows to help the jury follow the defendants'

movements.

Id.

Although the officer was not present when the actual events took place, his

testimony consisted of narrating portions of the video. The defendant appealed, arguing the

officer's testimony was not admissible under Rule 701 because his testimony was not based on

his own perceptions. The United States Court of Appeals for the Ninth Circuit disagreed. The

court held the officer's perceptions did not need to be based on the "live" events of the crime

because he was not providing an eyewitness account.

Id.

Rather, the officer was testifying only

with respect to the scenes depicted in the videotape; therefore, he needed only to have perceived

the video.

Id.

Thus, the Ninth Circuit rejected the defendant's argument that the officer's

testimony was cumulative and invaded the province of the jury. The court further reasoned the

officer's testimony likely helped the jury evaluate the video. The court explained:

"Moreover, we agree with the District Court that [the

officer's] testimony *** was likely to have been helpful to the jury

in evaluating [the videotape]. Although the jury viewed [the

videotape] in its entirety, it is reasonable to assume that one

viewing a videotape of a demonstration involving over 200 people

would likely not see certain details, given the tremendous array of

events all occurring simultaneously. [The officer] spent over 100

hours viewing [the videotape]. To have the jury do likewise would

be an extremely inefficient use of the jury's and the court's time.

Therefore, [the officer's] testimony concerning which persons were

engaged in what conduct at any given moment could help the jury

- 27 - discern correctly and efficiently the events depicted in the

videotape."

Id. at 503

¶ 64 Similarly, courts have departed from the rule requiring the witness to have

"previously acquired familiarity" or "personal knowledge" of the defendant's appearance before

or at the time of the event.

¶ 65 In People v. Larkins,

(Cal. Ct. App. 2011), the

California Appellate Court distinguished Mixon and Perry—cases we relied on in Starks—to

hold a loss-prevention manager's testimony was admissible where he observed defendant in

surveillance recordings. There, a loss-prevention manager testified the defendant, who was not a

member of the chain of gyms, was the person depicted in the surveillance video. The manager

said he was able to recognize the defendant because he had seen him in 20 to 30 surveillance

videos. The appellate court rejected the defendant's contention the manager's testimony was

inadmissible under Mixon and Perry because he had no "previously acquired familiarity" or

"personal knowledge" of the defendant's appearance. The court reasoned:

"It is thus clear that Perry's, and, therefore, Mixon's

insistence on the lay witness being familiar with the defendant

prior to or at the time the picture was taken (which was during the

crime) is because in both cases, the defendant had altered his

appearance between the crime and trial. No such alteration

occurred here. *** The second thing to remember about Perry

and Mixon is that they involved still photos. It is one thing to see a

single photo of a person and attempt to identify that person based

on it. But, here, the manager saw 20-30 videos of defendant,

- 28 - during which time he could observe such distinguishing

characteristics as defendant's posture, gait and body movements.

Thus, whatever the holding of Perry and Mixon, they are logically

inapplicable to videos. Finally, Perry and Mixon correctly point

out that the degree of knowledge of the subject by the identifier is

a matter of weight, not admissibility. At some point, which the

record does not disclose, the manager saw defendant's driver's

license and his booking photo and, therefore knew the name of the

person he was seeing in the videos."

The court concluded, "[i]t does not matter at what point in his viewing of the videos—either

before, during or after—that he saw what were indisputably photos of the defendant, and then

could put a name to the images he saw."

Id. at 918

. The court further reasoned:

"The manager looking at two photographs of defendant is no

different than the police officers in Perry and Mixon seeing the

defendant during prior contacts with him. One can be sufficiently

familiar with a person by seeing photos of them to later identify

them in the same or another medium. We do not doubt that a star-

struck young lady who has seen pictures of Justin Bieber in

magazines could easily identify him were she to see him on a

video, on television or in person."

The court in Larkins therefore held the manager " 'acquir[ed] knowledge "through one's senses"

by personal observation,' " as required by Mixon and Perry.

2013 IL App (2d) 120183, ¶ 30

- 29 - ¶ 66 Indeed, other states have allowed witnesses to testify concerning information they

viewed on videotape. See, e.g., Vinson v. State,

735 N.E.2d 828, 835

(Ind. Ct. App. 2000),

disapproved of on other grounds in Long v. State,

743 N.E.2d 253

(Ind. 2001) (trial court

properly allowed the police officer to testify with regard to his opinion that Vinson was the

person depicted in the surveillance video, where the officer had the opportunity to view the video

15 to 20 times); Domingo v. Boeing Employees' Credit Union,

98 P.3d 1222, 1226

(Wash. Ct.

App. 2004) (witness's statements as to what the videotapes contained were based on personal

knowledge where witness had viewed the videotapes herself but was not physically present at the

events depicted in the videotape); People v. Fomby,

831 N.W.2d 887, 890

(Mich. Ct. App.

2013); Robinson v. People,

927 P.2d 381, 384

(Colo. 1996); Moreland v. State,

53 A.3d 449, 455

(Md. Ct. Spec. App. 2012); People v. Hardy,

981 N.Y.S.2d 722

(N.Y. App. Div. 2014); State v.

Ely,

690 N.W.2d 698

(Iowa Ct. App. 2004); State v. Hardy,

884 P.2d 8

(Wash. Ct. App. 1994);

Nooner v. State,

907 S.W.2d 677

(Ark. 1995); State v. Morrill,

681 A.2d 369

(Conn. App. Ct.

1996).

¶ 67 c. Simmons' Lay Opinion Testimony

¶ 68 We adopt the majority view and hold a lay witness may testify regarding the

identity of a person depicted in a surveillance video if there is some basis for concluding the

witness is more likely to correctly identify the individual from the videotape than is the jury.

Moreover, the lay witness's familiarity with the person goes to the weight to be given to the

witness's testimony, not the admissibility of such testimony. Additionally, the person's

appearance need not have changed from the time of the videotape to the time of trial, so long as

the lay opinion testimony is helpful to the jury. Thus, we hold, although the witness must be in a

better position than the jurors to identify the individuals captured by the camera, this does not

- 30 - require the witness to have prior knowledge of those individuals; nor does it require those

individuals to have changed their appearance.

¶ 69 In applying our holding to the case at bar, we find Simmons' testimony was

rationally based on his perception of the video. We recognize Simmons was not present and did

not observe anything at the casino while the events took place, but we find, when analyzing the

perception of the witness under Illinois Rule of Evidence 701 (eff. Jan. 1, 2011), the focus is

properly placed on Simmons' perception of the video. Just like Begay and Larkins, Simmons

watched surveillance footage from numerous cameras placed throughout the casino's property to

track defendant's movement during the entire five-hour period he was at the casino. He produced

short clips and isolated certain frames to create still images—including color photographs of

defendant and defendant's driver's license. On the basis of his close scrutiny of the surveillance

footage and the 135 pages of still photographs he created, Simmons' opinions were ultimately

derived from his repeated viewings of the video, which he highly scrutinized. Simmons had the

benefit of reviewing the video numerous times, giving him the opportunity to comprehend the

events transpiring on the video and determine the identity of the participants.

¶ 70 Second, we find Simmons' testimony helpful to the trier of fact. His opinions

were intended to provide a clearer understanding about whether defendant and Williamson were

at the casino, left the casino in same vehicle, and followed Harrigan home. Just like Begay, the

video contains nearly four hours of footage, lacks clarity, is difficult to assess, and involves fluid

scenes and numerous individuals and vehicles. One would likely miss certain details considering

the wide array of events captured by surveillance cameras located throughout the casino and

parking lots. Simmons acknowledged he had to view the videotape a "few times" before

indentifying a black male as a possible suspect. To have the jury do likewise would be an

- 31 - extremely inefficient use of the jury's and the court's time. As a result, Simmons' testimony was

helpful to the jury.

¶ 71 Third, Simmons' testimony did not invade the province of the jury. His testimony

only linked individuals depicted in the surveillance video as being the same individuals depicted

in the still photographs. Rule 704 provides, "[t]estimony in the form of an opinion or inference

otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by

the trier of fact." Ill. R. Evid. 704 (eff. Jan. 1, 2011). Here, an ultimate issue was whether

defendant carried out the armed robbery in Champaign. The purpose of Simmons' testimony was

to determine whether the black suspect left the casino in the same car as the white suspect, which

followed the victim's car toward Interstate 74. Although Simmons referred to the suspects by

name (as stated on their state ID cards), he did not testify any of the individuals depicted in either

the still photographs or surveillance video was defendant. See, e.g., Larkins,

131 Cal. Rptr. at 917-18

; Fomby,

831 N.W.2d at 889

(testimony did not invade the province of the jury where

witness's testimony identified individuals depicted in still-frame photographs as the same

individuals in the actual video but "never testified that any of the individuals depicted in either

the still photographs or the surveillance video was defendant"). The issue of whether the

defendant in the courtroom was the person pictured in a surveillance photograph was a

determination properly left to the jury. Accordingly, Simmons' testimony did not invade the

province of the jury.

¶ 72 Finally, the weight to be given to Simmons' lay opinion testimony is for the trier

of fact to assess. This rule assumes the adversarial system will generally lead to an acceptable

result, because any inadequacies in the admitted testimony can be highlighted through cross-

examination. Bush,

405 F.3d at 916

(citing Fed. R. Evid. 701, Advisory Committee Notes on

- 32 - Proposed Rules). Here, defendant's counsel extensively cross-examined Simmons and had the

opportunity to highlight any deficiencies in his testimony regarding his familiarity with

defendant or the clarity of the videotape. Because the jury had the benefit of any cross-

examination testimony in determining the weight to place on Simmons' identification, the

province of the jury was not compromised.

¶ 73 Because Simmons' testimony was (1) rationally based his own perception of the

video and (2) helpful for the jury to determine whether the two individuals played craps at Par-

A-Dice casino earlier in the evening, Simmons' testimony was admissible under Illinois Rule of

Evidence 701 (eff. Jan. 1, 2011). Further, because we conclude Simmons' testimony regarding

his opinions did not invade the province of the jury, we also conclude the trial court did not err

when it admitted his testimony. Since we find the court did not err by allowing Simmons to

narrate the surveillance video, we need not proceed further through the plain-error analysis.

¶ 74 2. Jury Instructions

¶ 75 Defendant next asserts we must reverse his conviction of armed robbery because

the jury was not correctly instructed as to the elements of the offense. The State charged

defendant with armed robbery while armed with a firearm. At the jury instruction conference,

the State tendered various instructions, without objection, to the trial court. In turn, the trial

court instructed the jury defendant allegedly committed the offense while armed with a

dangerous weapon. According to defendant, since the jury was never instructed being armed

with a firearm was an element of the offense, it did not find defendant guilty of every element of

the offense. Alternatively, defendant argues the armed robbery statute under which he was

indicted explicitly excludes a firearm as a dangerous weapon and thus the jury found him guilty

of a nonexistent offense, which renders his conviction void.

- 33 - ¶ 76 Defendant concedes he forfeited the issue because he neither objected to the jury

instructions offered by the State nor raised the issue in a posttrial motion. People v. Enoch,

122 Ill. 2d 176, 186

522 N.E.2d 1124, 1129

(1988). Defendant argues we may address his argument

under the plain-error doctrine. We therefore turn to the first step of plain-error review and

determine whether an error occurred.

¶ 77 Jury instructions are intended to guide the jury and assist in its deliberations and

in reaching a proper verdict. People v. Parker,

223 Ill. 2d 494, 501

861 N.E.2d 936, 939

(2006).

"The task of a reviewing court is to determine whether the instructions, considered together, fully

and fairly announce the law applicable to the theories of the State and the defense." People v.

Mohr,

228 Ill. 2d 53, 65

885 N.E.2d 1019, 1026

(2008). We review de novo whether jury

instructions accurately convey the law. People v. Watt,

2013 IL App (2d) 120183, ¶ 39

(citing Parker,

223 Ill. 2d at 501

861 N.E.2d at 939

¶ 78 Here, defendant was charged with committing armed robbery while carrying a

"firearm," but the definitional instruction given to the jury discussed being armed with a

"dangerous weapon." See Illinois Pattern Jury Instructions, Criminal, No. 14.05 (4th ed. 2000)

(hereinafter, IPI Criminal 4th No. 14.05) ("A person commits the offense of armed robbery when

he, while carrying on or about his person, or is otherwise armed with a dangerous weapon ***.").

Similarly, the instruction listing the elements for armed robbery mentioned a dangerous weapon,

rather than a firearm. See Illinois Pattern Jury Instructions, Criminal, No. 14.06 (4th ed. 2000)

(hereinafter, IPI Criminal 4th No. 14.06) ("To sustain the charge of armed robbery, the State

must prove *** [t]hat the defendant *** carried on or about his person *** a dangerous weapon

***.").

- 34 - ¶ 79 These instructions do not accurately state the law. The armed robbery statute was

amended effective January 1, 2000, and the amendment created substantively distinct offenses

based on whether the offense was committed with a "firearm" or a dangerous weapon "other than

a firearm." (Internal quotation marks omitted.) People v. Washington,

2012 IL 107993, ¶ 6

969 N.E.2d 349

; compare 720 ILCS 5/18-2(a)(2) (West 2010) with 720 ILCS 5/18-2(a)(1) (West

2010). By referring to a "dangerous weapon," the jury instructions did not reflect the substantive

change in the law. We hold it was error for the trial court to give jury instruction No. 14.05 (IPI

Criminal 4th No. 14.05) and jury instruction No. 14.06 (IPI Criminal 4th No. 14.06). See Watt,

2014 IL App (1st) 120485, ¶ 18

; People v. Ware,

7 N.E.3d 796

(reaching the same result).

¶ 80 Having found the jury instruction incorrectly referenced a "dangerous weapon,"

we must now determine whether this error rises to the level of plain error. Defendant argues the

error in the jury instructions is serious enough it satisfies the plain-error analysis under the

second prong. We disagree.

¶ 81 Our supreme court held a jury-instruction error rises to the level of plain error

only when it "creates a serious risk that the jurors incorrectly convicted the defendant because

they did not understand the applicable law, so as to severely threaten the fairness of the trial."

People v. Hopp,

209 Ill. 2d 1, 8

805 N.E.2d 1190, 1194

(2004). Illinois courts have narrowed

the second prong to structural errors, "i.e., 'a systemic error which serves to "erode the integrity

of the judicial process and undermine the fairness of the defendant's trial." ' " Watt,

2013 IL App (2d) 120183, ¶ 38

(quoting People v. Glasper,

234 Ill. 2d 173, 197-98

917 N.E.2d 401, 416

(2009), quoting People v. Herron,

215 Ill. 2d 167, 186

830 N.E.2d 467, 479

(2005)).

- 35 - ¶ 82 In Watt,

2013 IL App (2d) 120183

, ¶ 39,

, the court held any error

in the jury instructions regarding a "dangerous weapon" rather than a "firearm" did not rise to the

level of plain error. The court explained, "when the instructions referred to a 'dangerous weapon'

rather than a 'firearm,' they misdescribed an element" and "a firearm is still a class of dangerous

weapon."

The court held:

"Because an error in an instruction that either omits an element or

misdescribes an element is not a structural error [citation],

automatic reversal is not required. Moreover, the jury's verdict of

guilty of armed robbery in the present case was based on evidence

that defendant was armed with a firearm. It follows that, in finding

that defendant was armed with a 'dangerous weapon,' the jury

implicitly found that defendant was armed with a firearm. The

error did not create a serious risk that the jurors incorrectly

convicted defendant because they did not understand the applicable

law, so as to severely threaten the fairness of the trial. [Citation.]"