NOTICE FILED This order was filed under Supreme

August 11, 2020 Court Rule 23 and may not be cited Carla Bender as precedent by any party except in NO. 4-17-0809 4th District Appellate the limited circumstances allowed under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Champaign County JEAN A. FUKAMA-KABIKA, ) No. 15CF648 Defendant-Appellant. ) ) Honorable ) Thomas J. Difanis, ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the court. Justices Knecht and Holder White concurred in the judgment.

ORDER ¶1 Held: The appellate court affirmed, holding (1) there was no error in the giving of Zehr admonishments under Illinois Supreme Court Rule 431(b) (eff. July 1, 2012), (2) the trial court did not err by removing a spectator interacting inappropriately with a member of the jury, (3) the trial court did not err by permitting the State to recall the victim for limited testimony on rebuttal, and (4) defendant failed to establish plain error since none of the prosecutor’s comments in closing argument were error.

¶2 In May 2017, a jury convicted defendant, Jean A. Fukama-Kabika, of two counts

of criminal sexual assault, one count of criminal sexual abuse, and one count of unlawful

restraint. The trial court sentenced defendant to seven years in the Illinois Department of

Corrections (DOC) on each of the sexual assault counts and one year in prison for the unlawful

restraint count, with each sentence to be served consecutively. Defendant was sentenced to three

years in DOC on the sexual abuse count, to be served concurrently. In his posttrial motion,

defendant claimed the prosecution improperly sought to shift the burden of proof during closing arguments, the State failed to prove him guilty beyond a reasonable doubt, and defendant’s

conviction for unlawful restraint violated the “one-act, one-crime” rule. Defendant further

contended the trial court committed error by denying defendant’s demand for production of

certain witness statements, denying defendant’s first motion in limine, failing to give defendant’s

non-IPI jury instruction, permitting the victim to testify again in rebuttal, and in denying

defendant’s pretrial motion to suppress. Defendant’s posttrial motion was denied, and this appeal

follows.

¶3 I. BACKGROUND

¶4 In May 2015, the State charged defendant with one count of criminal sexual

assault, a Class 1 felony (720 ILCS 5/11-1.20(a)(1) (West 2014)), one count of criminal sexual

abuse, a Class 4 felony (720 ILCS 5/11-1.50(a)(1) (West 2014)), and one count of unlawful

restraint, also a Class 4 felony (720 ILCS 5/10-3(a) (West 2014)). The charges stemmed from an

incident on May 3, 2015, where defendant, a legal émigré from the Democratic Republic of

Congo, was alleged to have sexually assaulted a female acquaintance he knew as a fellow

nursing student at Parkland Community College. The victim accepted defendant’s invitation to

attend a party at a local hotel televising a professional boxing match. The victim and defendant

arrived separately, and defendant was in the company of several friends. The group socialized,

eating and drinking throughout the evening, until, eventually, everyone left to go home. As the

victim went to her car, defendant approached, indicating he needed a ride, and she agreed to

drive him home. Once they arrived near his residence, defendant assaulted her, penetrating her

digitally, fondling her breasts, attempting to force her to perform oral sex on him, and eventually

forcing her on top of him in an effort at vaginal penetration. When that proved unsuccessful, the

victim indicated she yelled at defendant to leave her vehicle and he did. She spoke with a friend

-2- shortly after the incident, later she spoke to a relative, and she contacted the police early the

same morning.

¶5 When the police confronted defendant about the victim’s accusations, he admitted

the victim was unwilling and told him “no” when he began his advances. Defendant, whose

primary language is French, testified through an interpreter and indicated he had difficulty

communicating with the police when they questioned him. During police questioning, however,

he acknowledged turning the car’s ignition off against her will to prevent her from leaving.

When asked why he persisted in his advances after the victim made it clear she wanted him to

leave her car, the officer testified defendant said “he continued to try to initiate this contact with

her because he was a male and you had to continue trying to make sure that a woman was not

really interested.” According to the officer, defendant acknowledged reaching into the victim’s

pants and touching her vagina with his fingers even after she “continued to tell him no” and only

stopped when “he realized that he was not going to get as much or this was not going to go as far

as he wanted so he ended up giving up.” Defendant, testifying on his own behalf, said the sexual

contact was consensual. He also testified his inability to communicate effectively in English

caused the officers to misunderstand what he was trying to convey about the interaction between

him and the victim in the car. He said he understood the victim to be saying she did not want

another relationship, but that she was not opposed to what was transpiring in her vehicle.

¶6 Although each side called several additional witnesses to corroborate either what

transpired earlier in the evening or after the victim first disclosed the incident in her car, the

evidence of the encounter was limited to the testimony of defendant and the victim. Since the

victim declined to go to the hospital, despite the investigating officers’ request she go, there was

no physical or forensic evidence presented.

-3- ¶7 The jury returned verdicts of guilty on two counts of criminal sexual assault, one

count of criminal sexual abuse, and one count of unlawful restraint. Defendant’s posttrial motion

raised eight specific claims of error: (1) the State improperly shifted the burden of proof during

its closing argument, (2) the State failed to prove defendant guilty beyond a reasonable doubt,

(3) defendant’s conviction for unlawful restraint violated the one-act, one crime rule and was not

proved beyond a reasonable doubt, (4) the trial court erred in denying defendant’s demand for

the production of certain witness statements from the State, (5) the trial court erred in denying

defendant’s first motion in limine regarding State’s witness Carol Carradine, (6) the trial court

erred by refusing to give defendant’s non-IPI instruction No. 1, (7) the trial court erred by

allowing the State to recall the victim as a rebuttal witness, and (8) the trial court erred by

denying defendant’s pretrial motion to suppress evidence. The trial court denied the motion and

ultimately sentenced defendant to seven years on each of the counts of criminal sexual assault, to

run consecutively to each other, three years on the count of criminal sexual abuse, to run

concurrently with all other counts, and one year on the unlawful restraint, to run consecutively to

the criminal sexual assault counts.

¶8 This appeal follows.

¶9 II. ANALYSIS

¶ 10 Defendant raises four issues, only two of which were argued before the trial court

in his posttrial motion. He now claims the trial court (1) erred in its Illinois Supreme Court Rule

431(b) (eff. July 1, 2012), or Zehr, instructions by grouping the four principles together in its

questions to the jurors, and (2) violated defendant’s constitutional right to a public trial when it

excused one of his “supporters” who was caught shaking hands with one of the jurors, apparently

as they were exiting the courtroom during jury selection. Based on his posttrial motion,

-4- defendant again claims the trial court erred when it permitted the victim to be recalled in rebuttal

and that defendant was denied a fair trial when the prosecutor improperly shifted the burden of

proof to defendant during his closing argument. Defendant now further claims the prosecutor

improperly vouched for the credibility of the victim during his closing argument as well.

¶ 11 A. Zehr Admonishments

¶ 12 Defendant accurately notes the question of whether a trial court violated Illinois

Supreme Court Rule 431(b) (eff. July 1, 2012), and if so, the effect of noncompliance, are

reviewed de novo. See People v. Wilmington,

,

; see also

People v. Wrencher,

,

. For a rule so

straightforward in its language and the Illinois Supreme Court so clear in its direction, it is

surprising that 34 years after People v. Zehr,

,

(1984), and 23

years after Rule 431(b) was amended, we are still dealing with this issue. The rule itself is

simple—the trial court is to ask each prospective juror whether that juror understands and

accepts the following principles: “(1) that the defendant is presumed innocent of the charge(s)

against him or her; (2) that before a defendant can be convicted the State must prove the

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

evidence on his or her own behalf; and (4) that if a defendant does not testify it cannot be held

against him or her.” Ill. S. Ct. R. 431(b) (eff. July 1, 2012). We recently observed the language of

Rule 431(b) has been described by our supreme court as “clear and unambiguous,” requiring “a

specific question and response process.” (Internal quotation marks omitted.) People v. Bell,

,

(citing People v. Thompson,

,

(2010)). In Bell, the trial court explained the four principles contained in

Rule 431(b) to the venire and then asked each prospective juror if he or she “accepted” the

-5- principles but failed to ask each prospective juror if he or she “understood” the principles. We

found, the State having even conceded the issue, the failure was error, but we concluded the

defendant failed to establish first-prong plain error since the evidence was not closely balanced.

Bell,

.

¶ 13 Three years earlier, in People v. McGuire,

,

, this court sought to explain the importance of strict compliance with Rule 431(b):

“That rule ensures that members of the jury understand and accept the bedrock

principles of Anglo-American criminal law. Failing to comply with [the rule]

could threaten the integrity of the jury’s verdict or, at the very minimum, cast

doubt on any guilty verdict a jury might return. Trial courts must exercise

diligence when instructing the jury of the Zehr principles as codified in Rule

431(b) and must not deviate in any way from the precise language chosen by the

Illinois Supreme Court to be in that rule.”

¶ 14 In an effort to reinforce the significance of following the language in the rule, we

highlighted the need for prosecutors to be aware of the rule’s strict requirements so they could

alert the court to any deficiencies in their admonishment, thereby protecting their records. In

McGuire, the trial court, after reciting each principle individually, asked prospective jurors if

they “disagreed” with each principle but failed to ask whether they understood and accepted

them. We noted this was “clear error.” However, the trial court, at the completion of its inquiry

for each group of jurors then asked both the State and defense to indicate whether they “believe

that [the prospective jurors] ha[ve] been properly admonished as far as [the] Zehr principles.”

McGuire,

. As a result, defendant’s acquiescence precluded

raising the issue under a “plain error” analysis on appeal and distinguished the facts in McGuire

-6- from People v. Sebby,

,

, decided by the supreme court only five

months before. There, our supreme court said Rule 431(b) was not satisfied when the trial court

asked prospective jurors whether they “believed in” or “had any problem with” any of the four

Zehr principles. Although originally grouping all four together, as the court continued

questioning the jurors it discussed each principle while interspersing comments and questions

about whether the jurors could be fair and impartial. There too, the defense failed to object to the

method of questioning at trial and sought to raise the issue as one of first prong plain error, i.e.,

clear error where the evidence is closely balanced. The supreme court held a Rule 431(b)

violation constituted an “instructional error” which would not entitle a defendant to

second-prong automatic reversal as a structural error absent evidence of actual jury bias. Sebby,

. However, when coupled with proof of closely balanced evidence, it

required reversal under the first prong, since “[i]f the defendant carries that burden, prejudice is

not presumed; rather, ‘[t]he error is actually prejudicial.’ ” Sebby,

(quoting

People v. Herron,

,

(2005)). The supreme court found,

after evaluating “the totality of the evidence and conduct[ing] a qualitative, commonsense

assessment of it within the context of the case,” the evidence was closely balanced and the

court’s instructional error warranted reversal and remand for a new trial. Sebby,

.

¶ 15 The accepted methods of questioning are as numerous as the cases deciding the

issue. By way of example, in the oft-cited People v. Belknap,

, ¶ 42

, jurors were questioned in panels of six. In Wilmington,

, the

prospective jurors were questioned as a group. In People v. Hayes,

,

(2011), jurors were questioned in panels of 14. In People v. Willhite, 399 Ill.

-7- App. 3d 1191, 1193,

(2010), jurors were broken down into panels of four

before being questioned. The trial court in People v. Brown,

,

, questioned jurors by row. In People v. Morris,

,

, where the court questioned all 14 prospective jurors in the jury box as well as

20-25 prospective jurors seated in the gallery, the First District noted, “[T]here is no requirement

that a trial court use the exact language of the rule and the rule does not prescribe a precise

formula for trial judges to use in ascertaining jurors’ prejudices or attitudes.” (Internal quotation

marks omitted.) In each case, regardless of whether the actual questions were found to be error,

the method was never criticized.

¶ 16 Here, defendant fails to note the trial court, at the outset of the jury selection

process, informed all the prospective jurors present they would be receiving written instructions

at the conclusion of the trial, which would include the following:

“The first instruction is that the defendant is presumed to be

innocent of the charges against him. This presumption remains

with him throughout every stage of the trial and during your

deliberations on the verdict, and is not overcome unless from all

the evidence in this case you are convinced beyond a reasonable

doubt that he is guilty. The State has the burden of proving the

defendant—proving the guilt of the defendant beyond a reasonable

doubt, and this burden remains on the State throughout the case.

The defendant is not required to prove his innocence. In

connection with that last sentence, this defendant, as does every

individual, possess an absolute right not to testify at his trial if he

-8- so chooses. If the defendant chooses not to testify, you will receive

an instruction that states the fact that the defendant did not testify

must not be considered by you in any way in arriving at your

verdict.”

¶ 17 Later, when asking about these principles in particular, the trial court grouped all

four Zehr principles into one question, asking each panel of four prospective jurors whether they

“understood” or “understand those instructions” and whether they “will follow those

instructions” before impaneling them. Defendant objects not only to the grouping of the

principles but also what he characterized as the “suggestive practice” of the court by

“affirmatively stat[ing] the jurors would understood [sic] and follow the principles before

eliciting their response with the leading question ‘is that correct?’. ”

¶ 18 As the State accurately points out, this particular judge’s practice of grouping all

four Zehr principles into one question was previously addressed in Willhite, and the practice in

general, most recently in People v. Kinnerson,

. In each case, the

defendant complained about the collapsing of all four issues into one broad instruction; and, in

each, just as in the case before us, there was no objection to this process at trial or by way of a

posttrial motion. One may suspect, since the majority of cases raising Zehr issues on appeal

involve arguing plain error to avoid forfeiture, this may be because it is rarely an issue for

defendant or his counsel at trial.

¶ 19 Regardless, in Kinnerson, the defendant also argued the trial court erred by

“combining the four principles into a single statement on the law.” (Internal quotation marks

omitted.) Kinnerson,

. This court found the trial court’s statement

of all four principles, followed immediately by questioning of jurors “row by row,” asking, “do

-9- each of you understand and accept these basic propositions of law” with an indication of

responses by row, was sufficient to comply with both Rule 431(b) and the supreme court’s

admonishment in Thompson that the court “address each of the enumerated principles” and

determine “whether the potential jurors both understand and accept each of the enumerated

principles.” Kinnerson,

(quoting Thompson,

).

We noted neither the rule nor the supreme court required the trial court to address each principle

“separately.” (Internal quotation marks omitted.) Kinnerson,

.

Further, we found in Willhite: “Rule 431(b) has no requirement that the trial court ask separate

questions of the jurors about each individual principle. [Citation.] Nor does the rule require

separate, individual answers from each juror.” Willhite,

.

¶ 20 Defendant argues our rationale in Willhite is based solely on an earlier vacated

version of People v. McCovins,

,

(2010), vacated,

,

(2011). This is not new. We addressed the identical argument in

Kinnerson, where, after noting the absence of language in both Thompson and Rule 431(b)

requiring individual questions to each juror regarding each principle, we found, “[c]ontrary to

defendant’s assertions on appeal, our rationale in Willhite was not solely reliant on an earlier,

vacated version of McCovins.” Kinnerson,

. Instead, we

concluded, as we do again, the plain language of the rule does not require “ ‘the trial court to ask

jurors individually about each principle’ or ‘receive their answers one by one.’ ” Kinnerson,

(quoting Willhite,

). Here, the jurors were

asked, in panels of four, if they “understood” each of the Zehr principles, and they were provided

the opportunity to respond. The trial court then asked if they “will follow those instructions” and

gave them each an opportunity to respond as well. This is not a situation like Sebby, 2017 IL

- 10 - 119445, ¶ 49, where the trial court asked prospective jurors if they “ ‘had any problem with’ ” or

“ ‘believed in’ ” the principles, or that of Belknap,

, where the court asked

one of three variations— whether prospective jurors “disagreed with,” “had any quarrel with,” or

“accepted” the principles, or Wilmington,

, where the court asked if any of

the jurors disagreed with each principle. In each of those cases, the primary dispute was with a

failure to ask if the jurors “understood” the principle in conjunction with other options noted

above. In the matter before us, the trial court expressly asked if the jurors “understood” the four

principles and, we submit, asking if they will “follow” the principles is the functional equivalent

of asking if they “accept” them. This same questioning passed muster in Wilhite and does so

again. We still encourage trial courts to simply read the language of Rule 431(b) and avoid the

issue entirely. When trial courts ask prospective jurors if they “accept” a principle, it is not some

philosophical inquiry into their morality but an effort to determine whether they are willing and

likely to follow the instructions on that principle. Although that may be the ultimate goal, Zehr

and Rule 431(b) use the term “accept” and trial courts would do well to do the same. Defendant’s

complaint regarding the exact manner of questioning, i.e., that by including the comment “isn’t

that correct?” the trial court somehow overbore the free will of what we must assume was a

reasonably intelligent venire, we find to be so picayunish as to warrant no comment. These

belated claims of Zehr violations are not going to force us to devolve into an analysis of voice

tone and inflection. There was no error with the trial court’s Rule 431(b) admonishments.

Without error, there is no need to proceed further with a plain error analysis. See People v. Hood,

,

(without error there can be no plain error).

¶ 21 B. Defendant’s Sixth Amendment Claim

- 11 - ¶ 22 Defendant next argues his constitutional right to a public trial was violated when,

during jury selection on the first day of trial, the trial court excluded some unknown person from

defendant’s church who was present “for support” when he was caught interacting and shaking

hands with one of the jurors as they were being excused for lunch.

¶ 23 Here, the trial court removed an individual because of his inappropriate

interactions with a juror. This is more akin to the removal of an unruly spectator, similar to the

situation in People v. Cooper,

,

(2006),

which discussed “partial closure” within the context of excluding several family members of the

defendant due to their behavior before the jury. There, this court noted the presumption against

removal may yield to an “overriding interest that is specifically articulated.” (Internal quotation

marks omitted.) Cooper,

. We also found the standard to be applied when

determining the sufficiency of the record to support a trial judge’s exclusion of a disruptive

individual from the courtroom is whether there has been an abuse of discretion. Cooper,

.

¶ 24 In the case before us, one person, not related to defendant and identified only as

someone from his church who was present for “support,” was seen shaking hands and interacting

in some fashion with one of the jurors being excused for lunch. There is no indication anyone

else was excluded or that defendant opposed the removal of the person interfering with a juror.

The trial transcript reveals after the second panel of jurors had been selected and sworn, they and

the remaining venire were being released for lunch when the following conversation occurred:

“THE COURT: Mr. Dill [(defense attorney)], who is that

gentleman that’s shaking hands with one of my jurors?

MR. DILL: Judge, this is a man that I met this morning

- 12 - who goes to church with my client and he’s here for support.

That’s—.

THE COURT: Sir, you’re excused from this trial. I don’t

expect to see you here again. You do not interact with my jurors.

We will be in recess.”

¶ 25 When they reconvened, the court made no further comment. The “overriding

interest” was “specifically articulated” by the trial court when confronting counsel and

addressing the individual. He was being removed for directly interacting with what we can

surmise was one of the jurors who had already been selected and sworn since the court referred

to “one of my jurors.” The “overriding interest” here was to ensure a trial with fair and impartial

jurors, something one would assume was important to defendant as well, unless, of course, he

was hoping for some level of bias or influence generated by the supporter’s interaction with the

juror with whom he was seen shaking hands.

¶ 26 Of note once again, defendant did not object. His counsel did not include this

issue in a lengthy and detailed posttrial motion. Instead, we see it for the first time on appeal, as

if sprung full-grown from the forehead of Zeus and argued as if the court conducted a wholesale

evacuation of the courtroom. Our remarks should not be construed or misconstrued as some

comment on a defendant’s legitimate and necessary right to appeal. They are not. Instead, they

highlight once again the fact that the issue was not of concern to defendant or his counsel, but

appears now, exaggerated beyond what the record reveals. This was not a “closing” of

defendant’s public trial. The extent of the closure, or more accurately, eviction, would fall under

the “triviality standard” of Peterson v. Williams,

(2d Cir. 1996). A triviality

standard, properly understood, looks to whether the actions of the court and the effect that they

- 13 - had on the conduct of the trial deprived the defendant—whether otherwise innocent or guilty—of

the protections conferred by the sixth amendment. Williams,

.

¶ 27 Our supreme court recently analyzed the public trial issue in People v. Radford,

, where a defendant contended the trial court erred by partially closing the

courtroom during jury selection when it filled the courtroom with prospective jurors, leaving

only enough space for two members of the defendant’s and the victim’s families. The court

discussed at length the sixth amendment right to public trials, noting, “[a] contemporaneous

objection is particularly crucial when challenging any courtroom closure” and the failure to

object deprives a trial court of the opportunity to explain its justification or develop an alternate

plan. Radford,

. More importantly, the court stated, “This need to lodge a

contemporaneous objection to a courtroom closure also prevents a defendant from potentially

remaining silent about a possible error and waiting to raise the issue, seeking automatic reversal

only if the case does not conclude in his favor.” Radford,

.

¶ 28 In People v. Evans,

, ¶ 11,

, the First

District “assume[ed] that preventing juror contamination [wa]s an ‘overriding interest’ ” when

evaluating the effect of removing an individual—in that case, the defendant’s step-grandmother.

See also Waller v. Georgia,

(1984). It was the inability to show efforts at

contamination which doomed the trial court’s decision to exclude her from witnessing voir dire.

Evans,

, ¶¶ 11-12. In People v. Willis,

,

(1995), the trial court was found to have erred by barring defendant’s family

members from voir dire to prevent contamination of prospective jurors, without evidence. The

situation before us is not the one to which defendant alludes in his citation of Presley v. Georgia,

(2010). Presley, as well as Willis and Evans, involved “perceived” possible

- 14 - risks of jury contamination. Here, the trial court witnessed the spectator having contact and

communicating directly with a juror as they were being escorted out of the courtroom. Once the

court excluded him from the trial, neither defendant nor his counsel voiced an objection, sought

to make a record, or sought an explanation. Allowing them to do so now would only encourage

the behavior Radford decried. Further, as the Radford court noted, “not every courtroom closure

[(as opposed to a mere expulsion)] results in an unfair trial, nor does each closure effect the

values underlying the sixth amendment’s public trial guarantee.” Radford,

(citing Weaver v. Massachusetts,

(2017)). Defendant can point to

nothing the removal of the interfering “supporter” did to “erode the integrity of the judicial

process and undermine the fairness of the defendant’s trial,” a definition of the sort of second-

prong structural error which might otherwise entitle him to “plain error” analysis. (Internal

quotation marks omitted.) Thompson,

. The defendant has the burden of

persuasion under both prongs of the plain error doctrine, and if he fails to satisfy his burden of

persuasion, as he did here, “the procedural default will be honored.” See People v. Hillier,

,

(2010), and People v. Eppinger,

,

.

¶ 29 C. Victim’s Rebuttal Testimony

¶ 30 Defendant next argues the trial court’s decision to permit the victim to be recalled

by the State as a rebuttal witness was error. Defendant accurately notes we review the

discretionary admission of rebuttal testimony under an abuse of discretion standard. People v.

Woods,

,

. Indeed, it is within the trial court’s

discretion whether to allow rebuttal testimony and that determination will not be disturbed absent

“a clear abuse of discretion.” (Emphasis added.) People v. Harris,

, 901

- 15 - N.E.2d 367, 370 (2008). “An abuse of discretion will be found only where the trial court’s ruling

is arbitrary, fanciful, unreasonable, or where no reasonable person would take the view adopted

by the trial court.” People v. Caffey,

,

(2001).

¶ 31 After defendant testified on his own behalf, the prosecutor indicated it was his

intention to recall the victim. Defendant objected, contending the same topics were already

covered by the victim and defendant, and since nothing new had been brought up by defendant’s

testimony, there was no legitimate basis for recalling the victim other than to allow her to repeat

her emotional testimony before the jury.

¶ 32 The trial court noted several areas where their testimony had differed but made it

clear to the State: “[I]ts going to be really limited ***. Again, we’re not going back over this all

again. [Defense counsel] has a point. You can ask some specific questions where you think they

are rebutting the testimony that was presented.”

¶ 33 After a recess, the trial court reiterated, “[R]ebuttal is going to be brief. There are

very few, as I recall the testimony, things that could be rebutted by the victim testifying.” It is

clear from the record the trial court thought there were several areas where rebuttal testimony

was proper but was careful to note the “really limited” nature of rebuttal evidence it would allow

the State to elicit from the victim. In fact, during the necessarily leading questioning by the State

at one point, when the State instructed the witness to “[t]ell the jury what happened,” the court

immediately stepped in, addressing the State: “No ***. The answer is either yes or no,” requiring

the State to keep the inquiry specific and limited. In addition, as defense counsel repeatedly

objected to “asked and answered” questions, the court was quick to note to the prosecutor when

his questioning went beyond the limited bases for rebuttal.

¶ 34 The proper use of rebuttal evidence is to “explain, contradict or disprove

- 16 - defendant’s evidence.” People v. Hood,

,

(2004). This is

true even if the evidence was such that it would have been admissible as part of the State’s case

in chief. People v. Lucas,

,

(1989). Defendant relies

heavily on People v. McGhee,

,

(1974), a case easily

distinguished from the one before us. In McGhee, the defendant appealed from his bench trial for

battery, resisting arrest, and aggravated battery, claiming rebuttal evidence presented by the State

was admitted improperly. The First District found the “rebuttal evidence was offered by the State

to contradict defendants’ testimony concerning [the officers’] conduct in the lockup after the

altercation for which [the defendants] were being tried.” McGhee,

. This

was collateral to the substantive issues at trial since the behavior for which defendant was on trial

occurred before the incidents in the lock-up after his arrest. Further, the trial court’s comments

revealed it resolved credibility issues raised by the conflicting testimony based on the improper

rebuttal evidence.

¶ 35 Here, the court strictly limited the prosecutor both as to topic and extent of

examination, to address only those issues which would tend to “ ‘explain, repel, contradict or

disprove evidence of the defendant.’ ” Hood,

(quoting Lucas,

). The areas of inquiry were limited to interaction between the victim and defendant while at

the hotel where defendant testified the victim “slow danced” with him, a claim by defendant he

had prearranged plans for the next day with the victim, a claim by defendant of a number of

planned dates which had to be cancelled due to work, and defendant’s claim the victim sang him

a song and provided a “lap dance” while they were parked outside his residence.

¶ 36 Considering this case was a credibility contest between the victim and defendant

as to what transpired between the two of them while parked in a vehicle, claims by defendant to

- 17 - a preexisting or more personal relationship with the victim than that to which she testified was

clearly relevant to the allegations and not a collateral matter as in McGhee. Her testimony

directly contradicted defendant’s claim of a slow, romantic dance at the hotel, his claim they had

plans for the next day, or that there had ever been planned dates previously. It also explained the

only time she sang a song was earlier in the evening when they were all heading to a restaurant,

and she did not willingly wind up on defendant’s lap in the car.

¶ 37 The trial court was careful to limit the length and area of inquiry to those specific

assertions made by defendant during his testimony and most of defense counsel’s objections

were sustained. The victim’s testimony can in no way be characterized as “improperly bolstering

her credibility.” Instead, it addressed the inference raised by defendant during his testimony

about the nature of the relationship between defendant and the victim, which was intended to

buttress his claim of consensual behavior.

¶ 38 We do not find the court’s admission of limited rebuttal testimony here to be

arbitrary, fanciful, or unreasonable.

¶ 39 D. Prosecutor’s Comments During Closing Argument

¶ 40 Defendant also contends he failed to receive a fair trial due to comments made by

the prosecutor during closing argument. Defendant claims the prosecutor misstated the law,

shifted the burden of proof to the defense, and improperly vouched for the credibility of the

victim. We consider whether a prosecutor’s comments during closing argument are sufficiently

egregious to require a new trial as a legal issue subject to de novo review. People v. Anderson,

, ¶ 47,

. In People v. Wheeler,

,

(2007), our supreme court clearly indicated its intent to “reaffirm our

intolerance of prosecutorial misconduct.” It first acknowledged, however, “[p]rosecutors are

- 18 - afforded wide latitude in closing argument” and reversal and retrial are not warranted unless the

improper remarks “constituted a material factor in a defendant’s conviction.” Wheeler,

. In Anderson, we noted closing arguments are to be viewed in their entirety and

remarks claimed to be improper must be considered “ ‘within the context in which they were

conveyed.’ ” Anderson, 2018 IL App (4th 160037, ¶ 48 (quoting People v. Lewis,

,

). Further, when the comment is based on reasonable

inferences to be drawn from the evidence or invited by the closing argument of the defense, then

it may sometimes be possible for otherwise improper argument to survive a claim of error.

Anderson,

; see also Bell,

(finding a prosecutor’s statements will not be held improper if provoked or invited by defense

counsel’s closing argument).

¶ 41 We note all the comments of which defendant complains are contained in the

State’s rebuttal argument. Regarding the “burden-shifting” comment, defendant asserts in his

brief that “the prosecutor first raised the issue that [the victim] would not levy these allegations

for no reason.” Thus, although defense counsel replied by stating he did not know the answer to

the factual question of why the victim would make false allegations, this argument did not permit

the prosecutor to respond with repeated and incorrect statements of law that shifted the burden of

proof to defendant. One small problem—there was no comment by the prosecutor in his initial

closing about how the “victim would not levy these allegations for no reason” and the record

cited by defendant is to the final comment of the prosecutor’s rebuttal argument.

¶ 42 A careful reading of the State’s initial closing argument reveals it focused on the

two different versions of what happened and discussed the credibility determinations the jury

was being required to make. It was the defense who first brought up the idea of “why would she

- 19 - make this up,” although he attributed it to the prosecutor. The closest thing said was one isolated

comment, when the prosecutor was describing defendant’s version of his interaction with the

victim on the night in question:

“This [sic] I kissed her and she fell into my arms overcome with cries of passion

and pleasure. And then things stopped and we just went our separate ways and she

drives home, and suddenly she apparently for no reason claims sexual assault.”

He then went on to discuss other aspects of defendant’s testimony.

¶ 43 During the defense closing, however, counsel said:

“[The prosecutor] alluded to the fact why would she make

this up? Why would anyone make up these allegations? Why

would they do this? I don’t know. We don’t know. We certainly

don’t—no one has to prove why someone would come into court

***. We don’t have to prove that, but why? Why would she make

that up? Every day you read the newspaper. Terrible things

happen. People lie. People do terrible thing to other people, and

most of the time we don’t know why. There’s no answer to that

question, but the evidence has shown you that’s exactly what

happened here. That’s exactly what happened.”

¶ 44 It was in response to these comments that the prosecutor, in his rebuttal argument,

said:

“Counsel brings it up and we have to address it. Why?

Why, why, why, why, why is [victim] saying this happened?

Counsel says I have no idea. I will give you a spoiler right now and

- 20 - say I do. Here is the answer. It is because it happened. She is

saying it happened because it happened. Now for you to disbelieve

[the victim]—for you to disbelieve [the victim] I think you should

have some reason for her to have made this up.”

¶ 45 There was an objection interposed by defense counsel and overruled by the court.

The prosecutor continued: “For you to disbelieve her I suggest you have to have some reason

why she would have made it up, and this is why. Did that look like fun? When [the victim] was

on the stand, when she shared this with you, did that look like fun?”

¶ 46 There was no objection to this comment. To support defendant’s claim of “burden

shifting,” defendant’s brief parsed the prosecutor’s words during his rebuttal argument, omitting

an intervening objection and reciting only portions of a sentence.

¶ 47 Regardless, the comments were obviously in response to defendant’s closing

argument and are not improper. As noted by the State, our supreme court outlined the difference

between a permissible argument concerning the credibility of a witness and an impermissible one

in People v. Banks,

,

(2010). Citing its previous

decision in People v. Coleman,

,

(1994), the supreme court

distinguished between a situation “where a prosecutor improperly argues that a jury would have

to believe the State’s witnesses were lying in order to acquit defendant,” and a permissible

argument where the State argues “a jury would have to believe the State’s witnesses were lying

in order to believe the defendant’s version of events.” (Emphasis in original.) Banks,

.

¶ 48 “Statements must be considered in the context of closing arguments as a whole,

and the State can reasonably respond in rebuttal to the defense’s characterization of the evidence

- 21 - or case.” People v. Miller,

. Here, the State’s only reference to a

“claim” of sexual assault was in the context of defendant’s version of events that evening. The

defense then laid out a scenario to explain why someone might lie, and the State’s comments

were a legitimate response. They did not go nearly as far as those considered proper in Coleman.

¶ 49 Defendant further claims the State sought to “shift the burden of truth” with the

prosecutor’s final statement during rebuttal:

“The only explanation for those facts or those circumstances and for her going

through this and saying things she did that day are true. That is why she is saying

it, and there is no other explanation and there is no other explanation offered. The

explanation is this: The defendant is guilty and he should so be found.”

¶ 50 In addition to the fact there was no objection, the comment is in direct response to

one made by defense counsel, “Why would anyone make up these allegations? Why would they

do this? I don’t know,” followed by defense counsel’s assertion that “people lie.” In context, the

comment appears directed more toward the victim than defendant. The prosecutor was arguing

the one and only explanation to be offered on her behalf was that she was telling the truth. There

is nothing about the prosecutor’s comment which shifts the burden of proof, and as a comment

on a matter raised by defendant, it is proper under the circumstances. See Bell,

, ¶ 134. “It is permissible for a prosecutor to comment on the uncontradicted nature

of the State’s case even where the only person who could have contradicted the State’s evidence

was the defendant himself.” People v. Reno,

,

(1975).

Here, there was no effort to comment on defendant’s lack of evidence, or some claimed

“burden,” but merely a response to defendant’s closing argument.

¶ 51 Defendant’s final claim is that the prosecutor “personally vouched for and

- 22 - expressed his personal opinion on [the victim’s] credibility and motives for testifying” when he

responded to counsel’s argument in rebuttal as set forth above. Based on the comment and the

context in which it occurred, defendant’s interpretation is both incorrect and extreme. Using

defendant’s logic, if the prosecutor used the first-person singular pronoun, in any context in

closing argument, he has somehow now “personally vouched for and expressed his opinion.”

Prosecutors are permitted to include some degree of both sarcasm and invective to express their

points. Banks,

. Further, “ ‘even improper remarks [by a prosecutor] do not

merit reversal unless they result in substantial prejudice to the defendant.’ ” People v. Shaw,

,

(quoting People v. Cosmano,

,

). “A closing argument must be viewed in its entirety, and the

challenged remarks must be viewed in their context.” People v. Glasper,

,

(2009). The attorneys focused their arguments on the credibility of the

parties and it was in that context the comments were made. None of the comments were

improper and therefore there was no error.

¶ 52 Absent error, there is no need to consider defendant’s plain error claim regarding

those comments for which there was no objection or reference in his posttrial motion. People v.

Jackson,

(“Without reversible error, there can be no plain error.”).

¶ 53 III. CONCLUSION

¶ 54 For the reasons set forth above, we affirm the trial court’s judgment.

¶ 55 Affirmed.

- 23 -