NOTICE

This Order was filed under FILED April 19, 2021 Supreme Court Rule 23 and is NO. 4-19-0417 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1).

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Woodford County BLAKE E. MARIANI, ) No. 18CF119 Defendant-Appellant. ) ) Honorable ) Charles M. Feeney III, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Holder White concurred in the judgment.

ORDER

¶1 Held: (1) The State’s evidence was sufficient to establish defendant’s guilt of the charged offense beyond a reasonable doubt.

(2) The trial court complied with Rule 431(b) (eff. July 1, 2012) when questioning potential jurors during voir dire.

(3) Defendant failed to establish either the occurrence of plain error or ineffective assistance of counsel with respect to the manner in which the jury was instructed.

¶2 Following a jury trial, defendant, Blake E. Mariani, was found guilty of unlawfully

possessing, with the intent to deliver, 15 to 100 grams of a substance containing heroin (720 ILCS

570/401(a)(1)(A) (West 2016)) and the trial court sentenced him to nine years in prison. Defendant

appeals, arguing (1) the State failed to prove his guilt beyond a reasonable doubt, (2) the court

violated Illinois Supreme Court Rule 431(b) (eff. July 1, 2012) when questioning potential jurors

during voir dire, and (3) either (a) the court erred by failing to sua sponte instruct the jury regarding the limited admissibility of certain evidence or (b) defense counsel provided ineffective

assistance by failing to seek such instructions. We affirm.

¶3 I. BACKGROUND

¶4 In August 2018, defendant was indicted on one count of unlawful possession of

heroin with intent to deliver (720 ILCS 570/401(a)(1)(A) (West 2016)) “in that [he] knowingly

possessed with the intent to deliver 15 grams or more but less than 100 grams of a substance

containing heroin[.]” The State later added a second count, charging defendant with the same

offense based on a lesser weight of heroin, but the trial court dismissed that count prior to trial on

the State’s motion. Both charges were based on allegations that in April 2018, law enforcement

officers executed a search warrant on a residence where defendant was living with two other

individuals and discovered 21.3 grams of a chunky brown substance containing heroin.

¶5 In March 2019, defendant’s jury trial was conducted. During voir dire, the trial

court questioned all potential jurors as follows:

“The next four questions I have deal with some fundamental principles of our

criminal justice system. And so the first one is that the defendant is presumed

innocent of the charge against him. The presumption of innocence. Does anyone

not understand and accept this principle? If anyone does not understand and accept

this principle, please raise your hand. Everyone understands it. Everyone accepts

it.

The next principle. Before the defendant can be convicted the State must

prove the defendant guilty beyond a reasonable doubt. If anyone does not

understand and accept this principle, please raise your hand. Everyone accepts it.

Everyone understands it.

-2- The next principle ***. The defendant *** has the right to not have to prove

any evidence on their own behalf. The defendant is not required to offer any

evidence on his own behalf. The burden of proof, as I stated, is on the State. The

burden of proof is not on the defendant to prove that he’s not guilty, the burden is

on the State to prove that the defendant is guilty. So does anyone not understand

and accept this principle? If so, please raise your hand. Everyone understands it.

Everyone accepts it.

The next principle, the defendant’s failure to testify cannot be held against

him. The defendant under the Constitution has a right to remain silent. Does anyone

not understand and accept this principle? If anyone does not understand and accept

this principle, please raise your hand. All understand it. All accept it.”

¶6 At trial, the State’s evidence showed defendant lived with two individuals—

Michael Turner and Jerrit Kamp—in a two-story residence rented by Kamp and located at 210

North Franklin Street in Roanoke, Illinois (Franklin Street residence). Turner and defendant had

bedrooms on the first floor of the residence while Kamp’s bedroom was located on the second

floor. Shortly before 5 a.m. on April 4, 2018, law enforcement officers, who were part of a

Multi-County Narcotics Enforcement Group known as the MEG unit, executed a search warrant

on the Franklin Street residence. During the search, officers found “a bag” of suspected heroin on

the floor of the residence’s first floor “front bedroom,” which belonged to Turner. A scale was

also found inside that bedroom, and several hypodermic syringes were observed “throughout the

residence.” Exhibits in the form of a photograph of the suspected heroin, which was taken at the

scene, and the actual substance (People’s exhibit No. 11) were admitted into evidence.

¶7 During the search, MEG unit members further found two pieces of mail addressed

-3- to defendant. One of those pieces of mail was addressed to defendant at a Peoria, Illinois, address

and located in the same bedroom as the suspected heroin. The second piece of mail was addressed

to defendant at the Franklin Street address and found in a different first-floor bedroom.

¶8 Patrick Murphy testified he was a member of the MEG unit and involved in

executing the search warrant on the Franklin Street residence. One of his functions was to provide

“pre-search-warrant surveillance.” While watching the Franklin Street residence before the

execution of the search warrant, Murphy observed a vehicle arrive at the residence shortly before

5 a.m. He did not see who occupied the vehicle or who exited it.

¶9 Murphy further testified that when the search warrant was executed, defendant was

located inside the Franklin Street residence. He was taken to Murphy’s squad car and, after being

read his Miranda rights (see Miranda v. Arizona,

(1966)), reported he “did not know

anything about any drugs inside of the residence,” “was a recovering opioid addict,” and had

moved into the Franklin Street residence the night before “to try to get clean with the help of the

residents in the house.”

¶ 10 Joni Little, a forensic scientist for the Illinois State Police, testified for the State as

an expert in drug chemistry analysis. In June 2018, she performed analysis on People’s exhibit No.

11, the bag of suspected heroin found at the Franklin Street residence. According to Little, the

exhibit consisted of “[a] plastic bag containing brown chunks.” She stated she emptied the bag and

determined that the “chunks” weighed 21.3 grams.

¶ 11 Little testified she then “took four different samples” from People’s exhibit No. 11.

With three of the samples, she performed “different color chemical tests,” which she described as

“preliminary tests” that give an indication of what a substance might be. Each “color chemical

test” Little performed indicated that there was the presence of heroin in the substance tested;

-4- however, those tests were not conclusive. Little testified she next performed a “[g]as

chromatography, mass spectrometry” test. She stated that test was positive for the presence of

heroin and, also, a conclusive test. As a result of her testing, Little opined People’s exhibit No. 11

contained “21.3 grams of brown chunks positive for the presence of heroin.”

¶ 12 On cross-examination, Little stated she tested “representative samples” from

People’s exhibit No. 11 for the presence of heroin. She viewed the contents of the exhibit “as a

whole,” stating “it’s not like [there were] individual bags of chunks.” Little agreed there was more

than one brown chunk in the bag and that that she weighed all the “chunks” together. Further, she

asserted she did not know “how many different pieces of the sample there [were].”

¶ 13 On redirect examination, Little testified it was her opinion that all of the contents

of People’s exhibit No. 11 was “a substance containing heroin.” The entire substance was

contained in one bag rather than multiple individual bags. She further stated as follows: “If it were

one piece, I would have called it just a brown chunk. But the fact that I called it chunks means that

it was probably torn a little bit, torn into powdery pieces.”

¶ 14 Kamp also testified for the State. He acknowledged living at the Franklin Street

residence and being arrested and charged with possession of heroin with the intent to deliver, a

Class X felony, after the house was “raided” in April 2018. However, he acknowledged entering

“into a contract agreement for cooperation” with the State. Pursuant to that agreement, Kamp was

to provide truthful testimony regarding the circumstances surrounding and leading up to the

execution of the April 2018 search warrant and the State would allow him to enter an open guilty

plea to the lesser charge of delivering between one and five grams of heroin, a Class 1 felony.

Kamp testified that after he pleaded guilty to that lesser charge, the trial court sentenced him to

five years’ probation. He also served 183 days in jail.

-5- ¶ 15 Kamp acknowledged being a heroin user. He testified he first met Turner, whom

he described as “the one that had all the drugs,” when he fixed Turner’s car and Turner provided

him with heroin as payment. Shortly thereafter, Turner’s house was “raided in Peoria” by the

police. Turner needed a place to stay, and Kamp offered his residence. Kamp stated Turner moved

into the Franklin Street residence around the beginning of 2018 and brought defendant with him.

By April 2018, defendant and Turner had been living with Kamp for “over three months.” While

living together, Kamp and defendant used heroin, but not Turner. On the morning of April 4, 2018,

heroin was in the Franklin Street residence.

¶ 16 According to Kamp, the three roommates were involved in selling heroin “pretty

much right away” after Turner and defendant moved in. He testified that both he and defendant

sold heroin to people who called Turner’s phone, stating he would take “bags” to people and

defendant would also “go and meet people” or ride with Kamp “[t]o take drugs to people.” Kamp

stated the heroin he delivered was given to him by Turner. “Every once in a while,” defendant

would give Kamp heroin and tell him to go deliver it. According to Kamp, defendant also received

that heroin from Turner. Kamp testified he started dealing heroin because he “was sick.”

Additionally, he asserted that “Turner kind of ran the house” and “would threaten people to come

and hurt you if you didn’t do certain things.” Kamp described Turner as “big,” weighing 500 to

600 pounds. Because of Turner’s threats, Kamp was afraid for his life and lives of his family

members.

¶ 17 Kamp further testified that he and defendant would go with Turner to Chicago to

meet people and get heroin. Kamp drove and they rode in his vehicle. He stated they would “sit

somewhere” while Turner made a phone call. Then, either defendant or Turner would go meet

someone and get the drugs. However, Kamp testified that because Turner “was a big dude” he did

-6- not “move a lot and get out [of] the car a lot” so defendant would typically go inside and get the

drugs for him.” Kamp stated he was unsure how much Turner would get at one time but described

it as “a lot” and “[s]everal grams.” He estimated that trips to Chicago to get heroin occurred every

two or three weeks.

¶ 18 According to Kamp, after returning with the heroin to the Franklin Street residence,

Turner would go into his room and “most of the time [defendant] would go in there” too. Kamp

noted that when they received heroin from Chicago, it was in a single bag. He assumed Turner and

defendant were in the bedroom “bag[ging]” the drugs up, i.e., separating the drugs into smaller

quantities to “have it ready.” Then, when Turner would get calls, Kamp and defendant “would run

[the drugs] to people.” Sometimes, Turner would also go out and sell drugs, but he rarely went by

himself.

¶ 19 Kamp denied that he ever received any money from selling heroin. Instead, Turner

would give Kamp and defendant heroin for their own personal use. Kamp maintained that neither

he nor defendant ever had “exclusive possession of the heroin in the house.” Rather, it was Turner

who “had it” and was “running th[e] show.” Kamp stated the “bulk” of the heroin never left

Turner’s room or his person.

¶ 20 Albert Holocker testified he was a detective with the Woodford County Sheriff’s

Office, was a MEG unit member, and participated in the execution of the April 2018 search warrant

at the Franklin Street residence. According to Holocker, MEG unit officers investigated narcotics

cases, performed controlled and undercover drug buys, and executed search warrants. He stated

he had been a MEG unit member for a year and “did narcotics work within the [sheriff’s]

department for a year before that.” Holocker estimated he had been involved in the execution of

over 50 search warrants and, as a narcotics officer, had spoken to “well over 150” heroin users

-7- regarding “how they use, how much they spend, [and] how much they *** use.”

¶ 21 In Holocker’s experience, most heroin users carried only dose amounts of heroin at

one time, like a tenth of a gram up to a half gram, and not bulk amounts of the drug. He stated 21

grams “wouldn’t be a user amount.” Holocker further testified that he had spoken with numerous

drug dealers who “have explained their packaging and methods.” He stated that, typically, drug

dealers “go to source cities” like Chicago or St. Louis to obtain drugs. They buy larger amounts of

drugs then “break it down into” smaller quantities to sell. Holocker testified that in the Woodford

County, Illinois, area, two tenths of a gram of heroin sold for $40 to $50. He believed the “going

rate” for an ounce of heroin, i.e., 28 grams, was $1500. Holocker opined that 21.3 grams of a

substance containing heroin was indicative of “a possession with intent to deliver amount.” He did

not believe a user would be in possession of that high of a quantity of narcotic.

¶ 22 Holocker further testified that around 8 a.m. on April 4, 2018, defendant agreed to

speak with him at the Woodford County jail. Defendant reported waking up around midnight on

the morning the search warrant was executed and noticing that his roommates were gone. At some

point, two individuals showed up, who defendant assumed wanted heroin because “they had been

there for that purpose before.” Defendant maintained Turner and Kamp returned to the Franklin

Street residence around 5 a.m. He asserted if law enforcement officers “were to have found

anything more than a couple of grams of heroin [in the residence], that mean[t] [Turner and Kamp]

had just gone to Chicago to re-up, to re-supply their stock of heroin.”

¶ 23 According to Holocker, defendant explained that he had gone with Turner and

Kamp to Chicago on several occasions. During those trips, Turner would have Kamp or defendant

“meet with the supplier and actually purchase the drugs from a gentleman named Coach.”

Defendant estimated the Chicago trips occurred about once a week and that they purchased about

-8- 25 grams of heroin at a time. He stated the last time he had gone with Turner and Kamp to Chicago

was about five or six days before the search warrant was executed.

¶ 24 Holocker stated defendant also admitted that Turner “would have [defendant and

Kamp] deliver heroin to clients.” Defendant acknowledged delivering heroin to others “several

times” and stated he received heroin in exchange for making those deliveries. Upon questioning

by the State, Holocker further testified as follows:

“Q. Did—based upon the conversation that you had with the defendant[,]

was it clear or not clear whether he knew heroin was in the house?

A. It was abundantly clear he knew heroin was in the house, as well as the

defendant would be expected—when he described if we found more than 2 grams,

2 or 3 grams, that meant that they just went and re-upped, meaning he knew how

much heroin was left before [Turner and Kamp] left to go get more.

Q. So based on everything you—the interview you had with him and the

knowing what you—the evidence as far as the weight, and everything like that,

would you have an opinion whether or not all three of these individuals were

intending to deliver this heroin?

A. I think they were all delivering heroin, yes.”

¶ 25 On cross-examination, Holocker clarified that it was his understanding from

speaking with defendant that if there was more than two or three grams of heroin located in the

Franklin Street residence, that meant Turner and Kamp “just returned from Chicago from

re-upping” their heroin supply, and that their trip occurred within hours of the execution of the

search warrant.

¶ 26 After the State rested its case, defendant elected not to testify and rested his own

-9- case. During closing arguments, the State argued defendant was guilty of the charged offense based

on his constructive possession of, with intent to deliver, the substance containing heroin. It also

argued defendant’s guilt based on a theory of accountability, asserting he was legally responsible

for the actions of both Turner and Kamp. The State submitted jury instructions consistent with its

arguments on both constructive possession and accountability, which were given to the jury.

¶ 27 Ultimately, the jury found defendant guilty of the charged offense. In June 2019,

the trial court sentenced him to nine years in prison. The record reflects defendant filed neither a

posttrial nor a postsentencing motion.

¶ 28 This appeal followed.

¶ 29 II. ANALYSIS

¶ 30 A. Sufficiency of the Evidence

¶ 31 On appeal, defendant first argues the State failed to prove him guilty beyond a

reasonable doubt of the charged offense—possession, with the intent to deliver, 15 to 100 grams

of a substance containing heroin. Specifically, he asserts the State failed to establish that (1) he

actually or constructively possessed the substance at issue, (2) he was legally accountable for the

actions of those who did possess the substance at issue, and (3) the amount of the substance at

issue was between 15 to 100 grams.

¶ 32 For the reasons that follow, we find the State presented sufficient evidence to

establish both defendant’s guilt based on a theory of accountability and that the weight of the

controlled substance at issue was between 15 and 100 grams. Accordingly, defendant’s challenge

to the sufficiency of the evidence lacks merit.

¶ 33 “The State has the burden of proving beyond a reasonable doubt each element of

an offense.” People v. Gray,

,

. “When a defendant challenges

- 10 - the sufficiency of the evidence, a court of review must determine whether, [after] viewing the

evidence in the light most favorable to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks omitted.)

“It is not the role of the reviewing court to retry the defendant” (id.) and “a reviewing court

must allow all reasonable inferences from the record in favor of the prosecution” (People v.

Eubanks,

,

). Reversal of a conviction is only warranted where

“the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt

of the defendant’s guilt.” Gray,

, ¶ 35.

¶ 34 As stated, defendant was charged with, and found guilty of, possessing, with the

intent to deliver, between 15 to 100 grams of a substance containing heroin. (720 ILCS

570/401(a)(1)(A) (West 2016)). “To sustain a conviction for unlawful possession with intent to

deliver a controlled substance, the State must prove beyond a reasonable doubt (1) the defendant

had knowledge of the presence of the controlled substance; (2) the controlled substance was in the

immediate possession or control of the defendant; and (3) the defendant intended to deliver the

controlled substance.” People v. Warren,

,

(citing

People v. Robinson,

,

(1995)). The weight of the heroin

was also an essential element of the offense. See People v. Jones,

,

(1996) (“When a defendant is charged with possession of a specific amount of an

illegal drug with intent to deliver and there is a lesser included offense of possession of a smaller

amount, then the weight of the seized drug is an essential element of the crime and must be proved

beyond a reasonable doubt.”).

¶ 35 1. Accountability

¶ 36 A person may be held legally accountable for another’s conduct when “either

- 11 - before or during the commission of an offense, and with the intent to promote or facilitate that

commission, he or she solicits, aids, abets, agrees, or attempts to aid that other person in the

planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2016).

“When [two] or more persons engage in a common criminal design or agreement,

any acts in the furtherance of that common design committed by one party are

considered to be the acts of all parties to the common design or agreement and all

are equally responsible for the consequences of those further acts. Mere presence

at the scene of a crime does not render a person accountable for an offense; a

person’s presence at the scene of a crime, however, may be considered with other

circumstances by the trier of fact when determining accountability.”

¶ 37 Defendant argues the evidence was insufficient to establish his guilt based on an

accountability theory because, at most, he had knowledge of only two to three grams of heroin

being “left” in the residence and was not aware of Turner and Kamp’s trip to obtain more of the

drug shortly before the execution of the search warrant on April 4, 2018. He maintains the State’s

evidence proved only that he “might have been predisposed to deliver heroin if Turner had chosen

to involve him” but not that he possessed the “specific intent” to possess and deliver the alleged

21.3 grams of suspected heroin ultimately found during the search.

¶ 38 However, “under the Illinois accountability statute, the State may prove a

defendant’s intent to promote or facilitate an offense by showing either (1) that the defendant

shared the criminal intent of the principal, or (2) that there was a common criminal design.”

(Emphasis in original.) People v. Fernandez,

,

. “ ‘Evidence

that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its

design supports an inference that he shared the common purpose and will sustain his conviction

- 12 - for an offense committed by another.’ ”

(quoting In re W.C.,

,

(1995)); see also People v. Houston,

,

(1994) (“[T]he State need only prove the accused had the specific intent to promote or facilitate a

crime. Once the State proves the accused intended to promote or facilitate a crime, it has

established the accused’s responsibility for any criminal act done in furtherance of the intended

crime.” (Emphases in original.))

¶ 39 Here, we find People v. Burke,

,

(1985),

instructive. In that case, the defendant was found guilty of possession of cannabis with intent to

deliver and possession of a controlled substance after several controlled drug purchases involving

her husband and the discovery of cannabis and LSD in her home during the execution of a search

warrant.

. On appeal, the defendant challenged the sufficiency of the evidence against

her, arguing “the substances found in the home were under the control of her husband, for his

personal use and sale, and that she engaged in no affirmative act to aid, abet, or encourage his drug

transactions.”

. More specifically, she maintained she should not have been convicted of

possession with intent to deliver under an accountability theory, asserting “her mere presence [at

the scene did] not render her accountable for the offenses committed by her spouse.”

.

¶ 40 This court rejected the defendant’s argument, noting “[t]he State’s theory of the

case was that of a family drug business, or what might be termed a ‘joint enterprise,’ with elements

of common design.”

. Further, we stated as follows:

“[I]t has been held that the trier of fact may infer an agreement which would support

accountability for a criminal offense based upon the conduct of the accused in

attaching himself to a group which combines to act in circumstances showing a

common design to do unlawful acts to which a group assents. [Citation.] Whether

- 13 - the evidence shows proof of acts showing common purpose is a question for the

trier of fact, and proof of such acts need not be supported by express words of

agreement, but can be drawn from the circumstances surrounding the act.

[Citation.]”

.

Ultimately, we held the evidence was sufficient to sustain the defendant’s conviction because it

showed the defendant “admitted her awareness of what was going on,” a “substantial amount” of

the drug was discovered in the master bedroom closet of the residence, the drugs were packaged

in small plastic bags, and the defendant benefited from the drug sales.

.

¶ 41 In this case, even if the evidence failed to establish defendant’s actual or

constructive possession of the controlled substance at issue, it nevertheless sufficiently

demonstrated his accountability for Turner’s possession with intent to deliver that substance. The

evidence indicated defendant, Turner, and Kamp had an ongoing agreement to sell heroin kept at

the Franklin Street residence. The three resided together, traveled to Chicago at regular intervals

to purchase heroin and “re-up” their supply, and both defendant and Kamp delivered heroin to

individuals who contacted Turner. In exchange for making deliveries of the drug, defendant and

Kamp received heroin for their own personal use. Evidence clearly showed defendant’s awareness

that heroin was kept at the residence, that there would be heroin in the residence on the day of the

search, and the manner through which more heroin was regularly obtained to perpetuate a

heroin-selling agreement between the three men.

¶ 42 Further, as argued by the State, it is possible the jury determined defendant’s

statements to Holocker—that he was aware of only two to three grams of heroin in the residence

and not a larger amount—was a self-serving attempt to minimize his culpability. Ultimately,

however, even if the jury accepted those statements as true, the evidence still amply demonstrated,

- 14 - through both Kamp’s testimony and defendant’s statements to Holocker, that defendant attached

himself to a group (Turner and Kamp) with an ongoing common criminal design to possess and

sell heroin. From the evidence presented, a rational trier of fact could infer the existence of an

agreement that supported defendant’s accountability for Turner and Kamp’s actions in furtherance

of that agreement in possessing, with the intent to deliver, the specific controlled substance at issue

in this case. Accordingly, the State presented sufficient evidence of defendant’s guilt based on an

accountability theory.

¶ 43 2. Weight of the Controlled Substance

¶ 44 As indicated, defendant also argues the State failed to sufficiently establish that the

weight of the substance containing heroin found at the Franklin Street residence was at least 15

grams. Defendant maintains that because Little, the State’s forensic scientist, conclusively tested

only one of multiple “chunks” of the suspected heroin, and the State presented no evidence

regarding the “chunks’ homogeneity,” the evidence was insufficient. Again, we disagree.

¶ 45 “A chemist *** generally need not test every sample seized in order to render an

opinion as to the makeup of the substance of the whole.” People v. Jones,

,

(1996). Random testing of seized samples of a suspected drug are “permissible

when the seized samples are sufficiently homogenous so that one may infer beyond a reasonable

doubt that the untested samples contain the same substance as those that are conclusively tested.”

“However, when such samples are not sufficiently homogenous, a portion from each container

or sample must be tested in order to determine the contents of each container or sample.”

¶ 46 Defendant primarily relies on two cases to support his contention that random

testing of the contents of the bag of suspected heroin was insufficient in this case. First, in Jones,

the defendant was convicted of possessing with the intent to deliver 1.4 grams of cocaine.

at

- 15 - 428. Evidence in the case showed the defendant was arrested for possessing five separate packets

that each contained a white rocky substance believed to be a controlled substance.

Only two of

the five packets were subjected to chemical testing.

Both of those packets tested positive for

the presence of cocaine and had a combined weight of 0.59 grams.

The combined weight of all

five packets, including the three that were untested, was 1.4 grams.

¶ 47 On review, the supreme court held the State “failed to test a sufficient number of

packets to prove beyond a reasonable doubt that [the] defendant possessed one gram or more of

cocaine.”

. It found that the testing of only two of the packets did not support an inference

that the same substance was in all five packets and whether the three untested packets “may have

contained cocaine or mere look-alike substances [was] pure conjecture.”

¶ 48 Second, defendant relies on the First District’s decision in People v. Adair,

,

(2010). In that case, after being arrested with a bag containing 24

pills of different colors and markings and some loose powder, the defendant was found guilty of

possessing 15 to 200 pills of methylenedioxymethamphetamine (MDMA) and 5 to 15 grams of

methamphetamine.

. On review, the defendant argued “the State failed to prove that he

possessed at least 15 pills containing MDMA and at least 5 grams of methamphetamine, where the

forensic chemist commingled the nonhomogeneous pills before testing for each controlled

substance.”

. The First District agreed, noting that after the pills and powder were

weighed together, “[t]he chemist then crumbled portions of each individual pill and fragment into

a representative sample dish, which also contained a portion of the loose powder,” and tested for

the presence of each controlled substance.

. Relying on Jones, the court stated that

“[w]hen distinct samples are seized, a representative sample of each distinct sample must be tested

to conclusively determine the chemical composition of that sample.”

. It held that, in the

- 16 - case before it, “at the very least[,] each color grouping of pills had to be treated as a separate

sample and tested independently for the presence of each controlled substance.”

¶ 49 Conversely, the State cites People v. Tilley,

,

, where the defendant was found guilty of participating in manufacturing between 100

and 400 grams of a substance containing methamphetamine. Evidence in the case showed law

enforcement officers searched the defendant’s residence and found a gift bag containing a “chunky

powder” that field-tested positive for methamphetamine and weighed 391.1 grams. Id. ¶ 3. The

“chunky powder” was described as consisting of both white and black chunks. Id. ¶ 7. Ultimately,

a sample of the “chunky powder,” weighing 25.3 grams, testified positive for the presence of

methamphetamine. Id. ¶ 3.

¶ 50 On appeal, the defendant asserted “the State failed to prove the mass of the

substance containing methamphetamine beyond a reasonable doubt” because it was required to

test and weigh the white and black “chunks” separately. Id. ¶ 11. This court disagreed, finding “the

powder constituted a single substance.” Id. ¶ 16. In so holding, we relied, in part, on the fact that

“the powder was found in a single container,” stating as follows:

“This court has indicated that materials found in separate containers should be

considered separate ‘substances’ even if the contents of the different containers

resemble each other. [Citation.] This approach is consistent with the related general

requirement that the contents of separate containers be tested separately for the

presence of illicit materials. [Citation.] The converse—that the contents of one

container, if not further segregated or self-contained, may, within reason, be

considered one substance—appears a sound rule of thumb.” Id. ¶ 17 (citing People

v. Coleman,

,

(2009) (stating,

- 17 - hypothetically, that if a defendant combined 15 grams of cocaine and 900 grams of

baking soda in a single freezer bag, “ ‘the two substances would become one

substance—i.e., 915 grams of a substance containing cocaine ***’ ”)).

¶ 51 Here, we find Jones and Adair are distinguishable from the facts of this case and

Tilley is most instructive. Specifically, we are not presented with a situation of substances

separated into multiple containers or with a single container holding clearly distinct items of

varying shapes and color. Instead, the alleged substance containing heroin was all within a single

container, a plastic bag, and the evidence reflects nothing distinct about the bag’s contents. Little

described the bag as containing “brown chunks,” with “chunks” that appeared to have been “torn

into powdery pieces.” Additionally, the record contains a photograph of the suspected heroin as

found at the scene, which depicts a clear plastic bag with contents that are uniform in appearance.

¶ 52 Given that the substance containing heroin in this case was all within one container,

not further segregated, and with no visible distinguishing features aside from being “chunky,” it

was permissible for Little to treat the bag’s contents as a single substance and perform her chemical

analysis from a representative sample of that substance. In this instance, Little determined the

bag’s contents weighed 21.3 grams. She performed “color chemical tests” on three samples of the

substance, which preliminarily indicated the presence of heroin. Additionally, she performed a

“[g]as chromatography, mass spectrometry” test on a fourth sample of the substance, which was

conclusively positive for the presence of heroin. This evidence was sufficient to establish that 21.3

grams of a substance containing heroin was found inside the Franklin Street residence.

Accordingly, defendant’s challenge to the sufficiency of the State’s evidence is without merit.

¶ 53 B. Rule 431(b)

¶ 54 On appeal, defendant next argues the trial court failed to comply with Rule 431(b)

- 18 - when questioning potential jurors during voir dire. Specifically, he argues the court impermissibly

(1) combined or “compounded” questions regarding the jurors’ understanding and acceptance of

each Rule 431(b) principle into a single question and (2) relied on jurors’ “lack of response” to its

questioning to signify their understanding and acceptance. Further, although defendant

acknowledges he did not preserve this issue for appellate review—due to his failure to raise the

issue with the court at any point during the underlying proceedings—he argues we may,

nevertheless, consider the merits of his claim pursuant to the plain-error doctrine. We disagree and

find no clear or obvious error.

¶ 55 “To preserve a purported error for consideration by a reviewing court, a defendant

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

,

. A defendant’s failure to take either step results in forfeiture of the

issue on review.

However, under the plain-error doctrine, we may excuse a defendant’s

forfeiture when “a clear or obvious error occurred” and either (1) “the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant, regardless

of the seriousness of the error,” 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, regardless of the closeness of

the evidence.” (Internal quotation marks omitted.)

“The initial analytical step under either

prong of the plain error doctrine is determining whether there was a clear or obvious error at trial.”

Id. ¶ 49.

¶ 56 Rule 431(b) sets forth certain requirements for the trial court when questioning

potential jurors in a case during voir dire. It states as follows:

“The court shall ask each potential juror, individually or in a group, whether that

juror understands and accepts the following principles: (1) that the defendant is

- 19 - 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; however, no inquiry of a prospective juror shall be made into the defendant’s

decision not to testify when the defendant objects.

The court’s method of inquiry shall provide each juror an opportunity to

respond to specific questions concerning the principles set out in this section.” Ill.

S. Ct. R. 431(b) (eff. July 1, 2012).

¶ 57 In People v. Thompson,

,

(2010), the

supreme court held “Rule 431(b) is clear and unambiguous.” Further, it outlined the rule’s

requirements as follows:

“Rule 431(b) *** mandates a specific question and response process. The trial court

must ask each potential juror whether he or she understands and accepts each of the

principles in the rule. The questioning may be performed either individually or in a

group, but the rule requires an opportunity for a response from each prospective

juror on their understanding and acceptance of those principles.”

¶ 58 More recently, the supreme court has rejected a very similar argument to the one

defendant makes in this case regarding the combining of Rule 431(b) questions. Specifically, in

People v. Birge,

, the defendant argued that the trial court erred in

admonishing the jury venire under Rule 431(b) “by grouping the principles into one broad

statement of law,” thereby failing “to ensure that the potential jurors understood and accepted each

of the four distinct concepts enumerated in the rule.” In finding no merit to the defendant’s claim,

- 20 - the court relied on the plain language of the rule, stating as follows:

“Here, the circuit court read the specific principles set forth in the rule

verbatim to the prospective jurors and asked the specific questions required by the

rule. Each of the prospective jurors indicated that they understood and accepted

those principles by a show of hands. The rule plainly states that the court can ask

the questions to the potential jurors as a group, and the rule does not require that

their response be conveyed orally rather than by a show of hands. We believe that

the procedure followed by the circuit court was all that was required by the plain

language of the rule[.]” Id. ¶ 27.

¶ 59 The supreme court further explained that neither case authority nor the plain

language of the rule required the trial court to “recite the principles separately to the prospective

jurors.” (Emphasis in original.) Id. ¶ 34. Ultimately, it held that under Rule 431(b)’s plain

language, a court is compliant with the rule “if it (1) instructs the prospective jurors on the four

principles, (2) asks if the prospective jurors understand those principles, and (3) asks if the

prospective jurors accept those principles.” Id.

¶ 60 Here, the trial court separately recited the four Rule 431(b) principles to prospective

jurors but, following its recitation of each principle, asked a single question regarding whether the

jurors’ understood and accepted the principle. Further, it directed jurors to raise their hands to

indicate any lack of understanding and acceptance and relied on the absence of any raised hands

to indicate that jurors, in fact, understood and accepted each principle. Nevertheless, like in Birge,

we find no clear or obvious error by the court. Specifically, neither supreme court case authority

nor the plain language of Rule 431(b) requires a trial court to separate its questioning in any

particular manner. In this case, the court’s method of inquiry was sufficiently compliant with the

- 21 - rule because it instructed the venire on the four principles and inquired as to both the jurors’

understanding and acceptance of the four principles.

¶ 61 Further, we note Rule 431(b) states only that the trial court’s method of inquiry

must provide “each juror an opportunity to respond to specific questions.” (Emphasis added.) Ill.

S. Ct. R. 431(b) (eff. July 1, 2012). The court’s questioning in this case provided each juror with

such “an opportunity to respond” and more was not required. Again, as noted in Birge, “the rule

does not require that [jurors’] response[s] be conveyed orally rather than by a show of hands.”

Birge,

. Additionally, although defendant suggests error occurred because

the court did not provide prospective jurors “with any means by which they could ask questions,”

the plain language of the rule contains no such requirement. Moreover, had any juror not fully

understood (or accepted) the principles recited by the court, a raised hand would have alerted the

court to the issue and prompted further interaction with the juror.

¶ 62 Under the circumstances presented, the trial court’s method of inquiry complied

with the dictates of Rule 431(b). Accordingly, there was no clear or obvious error and, thus, no

plain error.

¶ 63 C. Jury Instructions

¶ 64 Finally, on appeal, defendant argues the trial court improperly failed to give the

jury limiting instructions regarding the permissible admissibility of (1) his prior deliveries of

heroin, (2) Holocker’s “lay witness opinions of guilt,” and (3) “Kamp’s admission of guilt to a

different offense.” Again, defendant acknowledges his forfeiture of these issues by failing to raise

them with the trial court but argues his forfeiture may be excused under the plain-error doctrine,

in that clear or obvious errors occurred and the evidence at trial was closely balanced.

Alternatively, defendant claims his defense counsel was ineffective for failing to request the

- 22 - appropriate jury instructions.

¶ 65 As stated, under the plain-error doctrine, a defendant’s forfeiture may be excused

“when a clear or obvious error occurred and the evidence is so closely balanced that the error alone

threatened to tip the scales of justice against the defendant, regardless of the seriousness of the

error.” (Internal quotation marks omitted.) Sebby,

, ¶ 48. Additionally, under the

two-prong standard set forth in Strickland v. Washington,

(1984), a defendant

alleging ineffective assistance of counsel must show (1) his or her counsel’s performance fell

below an objective standard of reasonableness and (2) there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been different. People

v. Dupree,

,

. “A failure by the defendant to satisfy either

prong of the Strickland standard precludes a finding of ineffective assistance of counsel.” People

v. Peterson,

,

.

¶ 66 1. Evidence of Defendant’s Previous Heroin Deliveries

¶ 67 At trial, the State presented evidence of defendant’s involvement in selling and

delivering heroin while living at the Franklin Street residence. Defendant argues such evidence

was admissible for the limited purpose of showing only that he “may have intended to deliver the

suspected heroin in question” and suggests the State improperly argued it established his

involvement in a “drug enterprise.” Defendant maintains the jury should have been instructed that

his prior criminal conduct was relevant for only the limited purpose of showing his intent to deliver

the heroin at issue in this case.

¶ 68 “Evidence of other crimes is admissible if it is relevant for any purpose other than

to show the defendant’s propensity to commit crime.” People v. Pikes,

, ¶ 11,

. More specifically, other-crimes evidence may be admissible “to show

- 23 - modus operandi, a common design or plan, intent, motive, identity, knowledge, or the absence of

mistake.” People v. Cloutier,

,

(1993). “However,

even where relevant, the evidence should not be admitted if its probative value is substantially

outweighed by its prejudicial effect.” Pikes,

, ¶ 11.

¶ 69 Additionally, “[a] limiting instruction reduces any prejudice created by admitting

other-crimes evidence.” People v. Young,

,

(2008).

This court has stated that “[b]ecause of the significant prejudice to a defendant’s case that the

admission of other crimes evidence usually risks, *** trial courts should not only [give a limiting

instruction] at the close of the case, but also orally from the bench (unless defendant objects) at

the time the evidence is first presented to the jury.” People v. Denny,

,

(1993). However, we have also held that a trial court has “no independent

duty to tender such an instruction.” People v. Cregar,

,

(1988); see also People v. Musitief,

,

(1990)

(holding it is not the trial court’s obligation to sua sponte give an other-crimes limiting instruction).

¶ 70 Here, defendant does not argue that other-crimes evidence was improperly

admitted. Instead, he argues only that reversible error occurred because no limiting instruction was

given to the jury. First, we note that evidence of defendant’s drug-related activities while residing

at the Franklin Street residence was relevant for several purposes, other than his propensity to

commit crime, including to show modus operandi, a common design or plan, intent, motive, and

knowledge. In this case, the evidence was particularly relevant to show a common criminal design

between defendant, Turner, and Kamp to sell heroin, supporting his accountability for the charged

offense. Given the many purposes for which the drug-related other-crimes evidence was relevant,

defendant’s assertion on appeal that the jury should have been instructed to consider that evidence

- 24 - only as it related to his intent is without merit.

¶ 71 Second, as indicated above, this court has held that a trial court has no sua sponte

obligation to provide an other-crimes limiting instruction to the jury. However, even assuming

such an obligation existed, we would find no plain error in the instant case because, contrary to

defendant’s claims, the evidence at his trial was not closely balanced.

¶ 72 As stated, the drug-related other-crimes evidence was clearly relevant to

demonstrate a common criminal design to sell heroin among the individuals living at the Franklin

Street residence and the jury could consider such evidence for that legitimate purpose. From the

evidence presented, the jury could reasonably infer defendant’s agreement to aid Turner and Kamp

in selling heroin on an ongoing basis for the purpose of receiving heroin for his own personal use.

This is true even if the jury believed defendant’s reported statements to Holocker—that the supply

of heroin in the residence of which he was aware had dwindled to approximately two to three

grams and he was not specifically aware of Turner and Kamp’s trip to “re-up” that supply. See 720

ILCS 5/5-2(c) (West 2016) (providing that a person is legally accountable for another’s conduct

when “before *** the commission of an offense, and with the intent to promote or facilitate that

commission, he *** agrees *** to aid that other person in the *** commission of the offense”).

Additionally, the State’s evidence clearly demonstrated that the weight of the controlled substance

in this case was 21.3 grams of a substance containing heroin. Accordingly, we find the lack of any

other-crimes limiting instruction did not constitute plain error.

¶ 73 For the same reasons, we find there is not a reasonable probability that, but for

defense counsel’s failure to request an other-crimes limiting instruction, the result of defendant’s

trial would have been different. Thus, defendant’s ineffective-assistance-of-counsel claim also

fails.

- 25 - ¶ 74 2. Holocker’s Testimony

¶ 75 Defendant next argues error occurred because the jury was not properly instructed

regarding Holocker’s testimony. At trial, Holocker stated he was a law enforcement officer and

described his experience as it related to drug-related investigations, offenses, and offenders. He

testified that in his experience, most heroin users carried only dose amounts of heroin at one time,

21 grams of heroin would not “be a user amount,” and drug dealers went to larger “source cities”

like Chicago to obtain large amounts of drugs that they broke down into smaller quantities to sell.

Upon questioning by the State, Holocker also testified that based on his interview with defendant

and the weight of the controlled substance at issue, it was his opinion that defendant, Turner, and

Kamp “were all delivering heroin.”

¶ 76 Defendant argues that Holocker was a lay witness, noting the State never disclosed

him as an expert. Therefore, defendant maintains that the jury should have been instructed “that it

need not give any weight at all to [Holocker’s] testimony and also that [it was] not to draw any

adverse inference from the fact [Holocker was] a law enforcement officer ***.” People v.

Thompson,

, ¶ 59,

(setting forth procedures for “when the State

seeks to introduce lay opinion identification testimony from a law enforcement officer”). Further,

defendant contends the jury should also have been instructed to disregard Holocker’s opinion that

defendant was “delivering heroin.”

¶ 77 Illinois Rules of Evidence 701 and 702 (eff. Jan. 1, 2011) set forth parameters for

both lay and expert witness testimony. Specifically, lay witness testimony “is limited to those

opinions or inferences which are (a) rationally based on the perception of the witness, and

(b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue,

and (c) not based on scientific, technical, or other specialized knowledge ***.” Ill. R. Evid. 701

- 26 - (eff. Jan. 1, 2011). Conversely, where “scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form

of an opinion or otherwise.” Ill. R. Evid. 702 (eff. Jan. 1, 2011).

¶ 78 The rules of evidence “do not distinguish between expert and lay witnesses but

rather between expert and lay testimony.” (Internal quotation marks omitted.) People v. Loggins,

,

. Thus, a witness can offer both lay and expert

testimony in the same case.

“Law-enforcement officers are especially likely to serve as such

dual-capacity witnesses.” Id. ¶ 83. “An officer testifies as a lay fact witness when the officer

testifies, based on personal knowledge, about the events at issue—either the charged offense itself,

or law enforcement’s investigation of the offense.” Id. ¶ 88. However, when an officer provides

opinions based upon his or her experience—for example, as a narcotics officer—the officer “no

longer serves as a fact witness offering lay testimony” and is providing expert testimony, which

“must meet the foundational requirements of Rule 702.” Id. ¶ 89.

¶ 79 However, “[w]hen testimony is improperly admitted as a lay opinion, the error is

harmless if the witness was, in fact, qualified as an expert, and thus would have been accepted as

an expert by the trial court if so tendered.” Id. ¶ 110 (citing People v. Novak,

,

(1994), abrogated on other grounds by People v. Kolton,

,

(2006)). Additionally, where “ ‘an error was harmless, it most certainly cannot rise to

the level of plain error.’ ”

¶ 112 (quoting People v. Leach,

,

).

¶ 80 Here, the State does not dispute that it failed to offer Holocker as an expert witness

and the record reflects Holocker clearly offered both lay and expert witness testimony.

- 27 - Specifically, he testified about his involvement in the underlying investigation and the practices

and habits of drug dealers and users generally. However, while Holocker was not disclosed as an

expert, the record does contain evidence as to his expert witness qualifications. In particular, the

State elicited testimony from Holocker regarding his knowledge and experience as it related to

narcotics investigations. On appeal, defendant fails to present a fully developed and reasoned

argument challenging those qualifications. Under these circumstances, we find any error in the

admission of Holocker’s expert opinion as lay opinion was harmless. Similarly, we find no “clear

or obvious error” in the manner in which the jury was instructed.

¶ 81 Regarding defendant’s argument that Holocker was also impermissibly permitted

to offer an opinion on whether the occupants of the Franklin Street residence were delivering

heroin, we also find no error. The rules of evidence provide that “[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); see also People v.

Terrell,

,

(1998) (stating it is “well settled that a witness,

whether expert or lay, may provide an opinion on the ultimate issue in a case”). Here, it was

permissible for Holocker to provide an opinion—based upon defendant’s statements and the

amount of the suspected heroin—on the intent of defendant and his codefendants.

¶ 82 Finally, even if were to find clear or obvious errors as alleged by defendant, for the

reasons already expressed, the evidence was not closely balanced. Again, defendant has failed to

establish either the occurrence of plain error or that his counsel provided ineffective assistance.

¶ 83 3. Kamp’s Admission of Guilt

¶ 84 Finally, defendant notes the State presented evidence that Kamp pleaded guilty to

one count of delivering between one and five grams of heroin. He argues “[t]he jury should have

- 28 - been instructed that it was only allowed to consider Kamp’s confession and conviction as they

related to [Kamp’s] credibility.”

¶ 85 “A defendant who is separately tried is entitled to have his guilt or innocence

determined upon the evidence against him without being prejudged according to what has

happened to another.” People v. Sullivan,

,

(1978). As a result,

evidence that a codefendant or accomplice has pleaded guilty or has been convicted of the same

offense is admissible for impeachment purposes but not for purposes of proving the defendant’s

guilt. People v. Callaway,

,

(1989) (citing

Sullivan,

).

¶ 86 Defendant maintains error occurred in this case because the State (1) elicited

testimony that Kamp pleaded guilty to a charge that stemmed from the drug-related activities at

the Franklin Street residence and (2) argued during its closing argument that Kamp acknowledged

being a drug dealer and the same was true of defendant. Here, however, Kamp testified to much

more than merely the fact of his conviction. He provided details regarding drug-related activity at

the Franklin Street residence and described defendant’s involvement in those activities. Such

circumstances present a “unique scenario not contemplated within the general prohibition against

evidence of a codefendant’s conviction.” Callaway,

(finding no reversible

error where the defendant’s accomplices testified to a conviction for unlawful delivery and “also

gave complete statements concerning the transactions, including details of [the] defendant’s

participation”).

¶ 87 Additionally, we note that “[a]n error in a jury instruction is harmless if it is

demonstrated that the result of the trial would not have been different if the proper instruction had

been given.” People v. Johnson,

,

(1991). Here, assuming

- 29 - the jury should have been instructed that the fact of Kamp’s conviction only went to the issue of

his credibility, any error was harmless in light of the remainder of Kamp’s testimony on the issue

of defendant’s participation in selling heroin out of the Franklin Street residence. As noted, the

evidence at trial was not closely balanced and, even if the jury had been instructed as defendant

suggests, the result of his trial would not have been different. Defendant has failed to establish

either the occurrence of plain error, or that his defense counsel provided ineffective assistance.

¶ 88 III. CONCLUSION

¶ 89 For the reasons stated, we affirm the trial court’s judgment.

¶ 90 Affirmed.

- 30 -