No. 1-18-2044 Order filed June 30, 2021 Sixth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 13158 ) DION NEWTON, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, Presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court. Presiding Justice Mikva concurred with the judgment. Justice Harris dissented.

ORDER ¶1 Held: We vacate defendant’s conviction and remand for a new trial, where the trial court erred in not permitting the jury instruction for the lesser included offense, criminal trespass to a vehicle, when there was some evidence presented at trial, that if believed by a jury, could have resulted in a conviction of that offense. We find defendant was improperly sentenced as a Class X offender based on the plain language of the statute pursuant to section 5-4.5-95(b) (730 ILCS 5/5-4.5-95(b) (West 2018)) of the Unified Code of Corrections. We find the prosecutor’s statements in closing argument to be improper, however, there is no plain error where defendant cannot show the requisite prejudice. No. 1-18-2044

¶2 Following a jury trial, defendant Dion Newton was found guilty of possession of a stolen

vehicle and was sentenced to eight years’ imprisonment. On appeal, defendant contends that: (1)

the trial court erred in denying his request to submit a jury instruction for the lesser included

offense of criminal trespass to a vehicle; (2) defendant should not have been sentenced as a Class

X offender, and (3) the State’s closing argument was improper when it made misstatements of law

and fact. For the following reason, we vacate and remand.

¶3 BACKGROUND

¶4 Defendant was arrested and charged with possession of a stolen vehicle in connection with

events that occurred on August 26 and 28, 20171.

¶5 At trial, Emmanuel Udoh (Emmanuel) testified that on August 26, 2017, at approximately

10 p.m. he was in the area of 62nd and Ashland in Chicago. He was driving his mother’s black

2002 Nissan Xterra to J & J’s Fish Shack (J&J). Upon arriving at J&J, Emmanuel parked the

vehicle on 62nd Street facing Ashland, so he would be able to drive out easily after retrieving his

food. As he was walking to the car from J&J, Emmanuel was approached by two males who asked

him “are you going to come off those keys.” Emmanuel felt threatened and understood them to

mean that he should give them his car keys. Emmanuel had his keys in his hand and one of the

men reached for them, at that point Emmanuel lifted the hand the keys were in and swung at the

man; he missed. The same man then swung at Emmanuel, striking him, resulting in Emmanuel

dropping the keys and backing away from the men. Emmanuel walked home while also calling the

police to report the incident.

1 The events occurred in 2017 and this order will reflect that, however, throughout the trial and pleadings the parties refer to the year in question as 2018.

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¶6 On August 28, 2017, Emmanuel was informed that the police recovered the vehicle and

they wanted him to come in to identify the two men in a photo array. Emmanuel signed a form

before viewing the photo array. Emmanuel identified an individual who he thought took the vehicle

from him but admitted that the conditions that night were dark, and the incident happened within

“seven or eight seconds.” Emmanuel identified the State’s Exhibit 1 as a title certificate showing

that his mother, Mary Udoh, owned the 2002 Nissan Xterra, and confirmed that he and his mother

shared the vehicle. Emmanuel identified the State’s Exhibit 2 as a photo of the 2002 Nissan Xterra,

and it was in the same condition as when he drove it on August 26, 2017.2 Emmanuel testified that

he did not know defendant and did not give him permission to drive his car on August 28, 2017.

¶7 On cross examination Emmanuel testified that his name was not on the title, instead it was

only in his mother’s name. Emmanuel testified that defendant’s photo was among the photos that

were shown to him, however, he did not identify defendant as one of the two men involved and

instead identified a man that was not defendant. Emmanuel clarified that the form he signed before

viewing the photo array permitted him to be video and audio recorded.

¶8 Chicago Police Officer Daniel Symons testified that on August 28, 2017, at approximately

12:30 a.m., he was working patrol with his partner Officer Girard near 63rd Street and Ashland.

Symons testified that he saw a black Nissan Xterra go past his patrol vehicle and he ran the license

plates to check for expired registration. The license plate number Z429045 was listed as stolen.

Symons then radioed into dispatch to verify that the stolen status was still valid. Symons received

confirmation, indicated the direction in which the vehicle was travelling, and proceeded to follow

the vehicle westbound on 63rd Street. No other cars were between the stolen car and the patrol car.

While waiting for assisting units, Symons activated his lights and curbed the stolen vehicle.

2 At this time, the State moved to enter Exhibit 2 into evidence and defendant did not object.

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Symons exited his vehicle and approached the driver’s side of the curbed vehicle. Symons had the

driver of the vehicle exit the car and identified the driver to be defendant. Symons’ body camera

video was shown to the court.

¶9 On cross examination, Symons testified that defendant was cooperative during his

detainment. He did not observe any damage to the steering column before transporting defendant

to the police station and processing him. On redirect examination Symons testified that after

processing, Detective Freitag took over the investigation.

¶ 10 Chicago Police Detective Thomas Freitag testified that on August 28, 2017, at

approximately 1 a.m. he was working as a detective in a robbery unit and was assigned to this case.

Freitag gave defendant his Miranda rights and, at defendant’s request, talked to him in the

processing area at approximately 5 a.m. Freitag identified defendant in court as the person he spoke

to. Defendant told Freitag that he saw a man exit a vehicle quickly while on a phone followed by

a group of people running toward the car. Defendant stated that he ran towards the car and told the

group to not take the car. He got in the vehicle, which had the keys in the ignition and was running,

along with another man who he did not know. He stated that he tried to park the vehicle but instead

drove away with the other man still inside. The other man stated he wanted to sell the car to which

defendant told him no. Defendant told Freitag that he did not see anyone touch the man on the

phone and that he did not touch him either. Defendant knew the person on the phone from the

neighborhood and he proceeded to drive around looking for the owner so he could give back the

car. He could not find him, so he proceeded to keep the car because his car was in the shop and

the car was actually helping him. He kept going back to the spot where the man walked away from

the car, but never saw him and he did not know where he lived. When Freitag asked defendant

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why he did not just take the car to the police, he told him he probably should have but he did not

steal the car. At that point, defendant had nothing else to say.

¶ 11 On cross examination Freitag testified that there were many ways to take a statement from

someone in custody such as having that person write a statement, write the statement himself, or

record the statement where mandated by the law. Those methods were not used to take defendant’s

statement. Freitag testified that videotape recording is not available to detectives at the seventh

district. Emmanuel was videotaped by a detective from another district, who was located at the

seventh district at the time. On redirect examination, Freitag testified that he memorialized

defendant’s statement in his supplemental reports and that defendant’s statement was not required

to be recorded pursuant to the statute. Emmanuel’s identification from the photo array was

recorded with Emmanuel’s consent. On recross examination, Freitag admitted that he never gave

defendant the option to have his statement recorded.

¶ 12 Defendant’s motion for a directed verdict was denied.

¶ 13 Defendant sought to have instructions submitted to the jury that included the lesser

included offense of trespass to a vehicle. Defendant argued that based on the evidence submitted

to the jury, that could be an issue for it to consider. The State objected to the inclusion of the

instruction of criminal trespass to a vehicle, arguing it to be inapplicable because no evidence was

presented to warrant the jury receiving that instruction. Defendant’s statement showed that he took

the vehicle by theft and continued to possess it. In rebuttal, defendant argued that no one had

identified defendant as having taken the vehicle. It was up to the jury to make credibility

determinations on the evidence presented. The trial court denied the request for an instruction on

criminal trespass to a vehicle. In denying the request, the trial court provided a short synopsis of

the evidence, stating it did not demonstrate that a criminal trespass to a vehicle occurred: defendant

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was present when the car was taken by force, got in the car, and two days later was still caught

driving the car.

¶ 14 The State entered its exhibits into evidence and rested its case-in-chief. Defendant rested

its case without presenting any witnesses.

¶ 15 The trial court informed the jury that the parties were about to present closing arguments

and admonished the jury that closing arguments were not to be considered evidence. The court

further admonished the jury that the evidence had already been presented and when they go into

the jury room, they were to make their determination on the evidence. Additionally, the court stated

that if anything was said by the parties in closing arguments that the jurors felt was not based in

evidence; it should be disregarded.

¶ 16 The State summarized the evidence as defendant taking something that did not belong to

him and consequently was charged with possession of a stolen vehicle. The State argued that

possession was established when the bodycam showed defendant in possession of the vehicle.

Their case was further supported by Freitag’s testimony that defendant admitted that when he saw

the vehicle was still running with the key in it, he got in it and drove off. Additionally, the victim

established that defendant was not entitled to possession and defendant knew the vehicle was

stolen because of the statements that he made to Freitag.

¶ 17 Defendant argued that he did not take anything that did not belong to him which was

evident from the testimony presented. Defendant noted that everything in the case was recorded

except defendant’s statement to Freitag. Freitag did not take defendant’s statement by having

defendant write it, by writing it for the defendant, or by recording it in any other manner. The

reason, defendant argued, was because the photo array yielded negative results as to an

identification of defendant. Additionally, there was a series of events that demonstrated that

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defendant did not attack the victim, so instead of pursuing the individuals that actually took the

vehicle, the state pieced together what they knew and stuck it on defendant. It was up to the jury

to determine the statement’s credibility.

¶ 18 In rebuttal, the State reiterated that defendant took something without permission and

acknowledged that “[t]he police didn't record his statement, because they followed the law. . .

“[t]hat's not a crime that they can video record the defendant.” Defendant objected, and the trial

court overruled the objection. The State continued, “[a]nd he didn't give his permission to be

recorded. So, no, there isn't a recording of that, because the police followed proper procedures,

and they did their job that day.” The State distinguished Emmanuel’s recording by arguing that he

was a victim, and he gave his consent to be recorded. Lastly, the State argued that it did not matter

who Emmanuel picked out of the photo array when defendant was found to be in possession of a

stolen vehicle.

¶ 19 The trial court reiterated to the jury that the closing arguments were not to be considered

evidence. After deliberation, the jury found the defendant guilty of possession of a stolen vehicle.

The proceedings were continued for sentencing.

¶ 20 Prior to sentencing, on June 26, 2018, defendant filed a motion for a new trial. The motion

argued that: (1) the State failed to prove defendant guilty beyond a reasonable doubt; (2) the finding

was against the weight of the evidence; (3) defendant was denied due process of the law; (4)

defendant was denied equal protection of the laws; (5) the State failed to prove every material

allegation of the offense beyond a reasonable doubt; (6) defendant did not receive a fair and

impartial trial; and (7) the trial court erred in overruling the defendant’s motion for a directed

verdict at the close of the State’s case.

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¶ 21 On July 2, 2018, defendant was granted leave to proceed pro se. Defendant filed a pro se

motion to dismiss for lack of personal and subject matter jurisdiction arguing that the state of

Illinois needed to have an existing contract with defendant in order for it to sue him and for the

trial court to have jurisdiction. The trial court instructed defendant that the charging document

was controlling and that the complaining witness was the state of Illinois. Defendant’s motion to

dismiss was denied.

¶ 22 On July 9, 2018, defendant filed a pro se motion for a new trial, arguing that: (1) defendant

was not given his Miranda rights prior to giving a statement; (2) the statement that was made at

the police station was not written or otherwise recorded; and (3) defendant was not picked out of

a line-up. At the hearing on August 9, 2018, defendant argued the motion pro se. The trial court

denied the motion for a new trial finding that: the State properly used statements that defendant

made after he was provided his Miranda rights; the fact that his statement was not written or

videotaped was for the jurors to weigh; and even though he was not picked out of the photo array,

he was only charged with possessing a stolen vehicle and not with actually stealing it from the

victim. At that point, defendant agreed to have defense counsel represent him going forward.

¶ 23 On August 24, 2018, defense counsel was granted leave to file an amended motion for a

new trial, which argued that: (1) the trial court erred in denying defendant’s motion to suppress

statements 3; (2) the State failed to prove defendant was guilty of the charge beyond a reasonable

doubt; (3) the finding was against the weight of the evidence; (4) defendant was denied equal

protection of the laws; (5) the State failed to prove every material allegation of the offense beyond

3 Prior to trial, defendant filed a motion to suppress any and all statements or communications he made to any law enforcement official on August 28, 2017. The trial court denied the motion finding that the statements made were permissible pursuant to Oregon v. Elstad,

(1985).

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a reasonable doubt; (6) defendant did not receive a fair and impartial trial when the trial court: (i)

allowed two prior convictions (16 5004791 and 12 C 440125) of defendant, in the event that

defendant testified, and (ii) denied defense counsel’s request for the lesser included offense jury

instruction of criminal trespass to a vehicle; and (6) the trial court erred in overruling the

defendant’s motion for a directed verdict at the closed of the State’s case.

¶ 24 On August 29, 2018, the hearing on the amended motion for a new trial occurred.

Defendant briefly pointed out that the trial court erred by denying the motion to suppress statement

because Missouri v. Seibert,

, applied. Defendant argued that the State failed to prove

defendant was guilty beyond a reasonable doubt because they never called the owner, Mary Udoh,

as a witness. Lastly, defendant argued that the trial court erred in denying the jury instructions for

a lesser included offense of criminal trespass to a vehicle.

¶ 25 The State argued that the trial court’s decision in the motion to suppress was correct. It did

not need to call Mary Udoh when there was a certified title showing she was the owner entered

into evidence and Emmanuel testified that he did not provide defendant permission to have the car.

Lastly, they argued that they did prove defendant was guilty beyond a reasonable doubt.

¶ 26 The trial court determined that it did not matter if the owner testified or not, the issue was

possession not ownership. The vehicle was taken from Emmanuel, who testified, while defendant

was in possession of it. 4 The amended motion was denied.

¶ 27 At sentencing, the State offered in aggravation defendant’s criminal background which

included: a 1994 conviction for aggravated discharge of a firearm (94 CR 06243), a 2001

conviction for unlawful use or possession of a firearm by a felon (01 CR 13086), a 2003 conviction

for burglary (03 CR 15542), a 2007 conviction for possession of controlled substances (07 CR

4 Part of the trial court’s findings were inaudible for the court reporter.

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15631), a 2012 conviction for retail theft (12C4440125), and multiple misdemeanor offenses. The

State argued that defendant’s 1994 conviction for aggravated discharge of a firearm and 2003

conviction for burglary required him to be sentenced as a Class X offender, which would make his

sentencing range 6 to 30 years.

¶ 28 In mitigation, defendant argued that the events of the 1994 conviction occurred when

defendant was 155 but was adjudicated as an adult. Defendant also offered the following facts in

mitigation: obtained his G.E.D., was employed, had high blood pressure, and was diagnosed with

a learning disability. Additionally, defendant had a stable family home, but recently lost his

mother. As a result, defendant asked for leniency and to be sentenced to six years.

¶ 29 The trial court noted that defendant had five previous felony convictions along with other

“minor stuff.” Under the totality of the circumstances the trial court found it fitting to sentence

defendant as a Class X offender to an eight-year prison term and a three-year mandatory supervised

release period.

¶ 30 On the same date defendant filed a motion to reconsider the sentence. The motion argued

that the sentence was improper given defendant’s background, the trial court considered matters

implicit in the offense, the State failed to prove eligibility for enhanced penalty or extended term,

and the sentence penalized defendant for exercising his right to trial. There was no argument on

the motion, but the trial court found that the sentence of eight years was lenient compared to the

30 years maximum. As such, the motion was denied, and this timely appeal followed.

¶ 31 ANALYSIS

¶ 32 On appeal, defendant contends that: (1) the trial court erred in denying his request to submit

an instruction to the jury for the lesser included offense of criminal trespass to a vehicle; (2)

5 Defendant was 17 when the crime occurred, which was reflected in the PSI created at the time.

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defendant should not have been sentenced as a Class X offender, and (3) the State’s closing

argument was improper when it made misstatements of law and fact.

¶ 33 A. Jury Instruction

¶ 34 The State’s theory of the case was that defendant knew the vehicle in his possession was

stolen because he was the one who intended to permanently deprive the owner of it. However, the

State’s witness, Freitag, testified that defendant told him that he jumped in the car in an attempt to

stop other people who were trying to steal it and that he continued to look for the owner of the car

in order to return it to him. Defendant contends that this evidence, if believed by the jury, would

warrant a finding that defendant was not guilty of possession of a stolen vehicle but rather criminal

trespass to a vehicle. Accordingly, defendant contends, the trial court was obligated to submit this

question of fact to the jury and the failure to do so constituted reversable error.

¶ 35 The State contends that the intent to permanently deprive the vehicle owner is not an

element of the charge of possession of a stolen vehicle. Therefore, failure to prove the element of

intent did not entitle defendant to a jury instruction on criminal trespass to a vehicle. The State

further argued that the trial court properly exercised its discretion in refusing to give an instruction

on criminal trespass to a vehicle because there was not sufficient evidence to entitle defendant to

such an instruction.

¶ 36 Whether a charged offense includes another as a lesser included offense is a question of

law, we review de novo. People v. Thomas,

(2007). “A defendant is

entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could

rationally find the defendant guilty of the lesser offense yet acquit him or her of the greater.”

This court must first determine if an uncharged lesser included offense exists, then we may

examine the evidence produced at trial. People v. Kolton,

(2006). “Under the

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charging instrument approach, an offense may be deemed a lesser-included offense even [if] every

element of the lesser offense is not explicitly contained in the indictment, as long as the missing

element can be reasonably inferred.”

Whether a particular offense is a lesser included of another

is a determination to be made on a case-by-case basis using the factual description of the charged

offense in the indictment.

“A lesser offense will be ‘included’ in the charged offense if the

factual description of the charged offense describes, in a broad way, the conduct necessary for the

commission of the lesser offense and any elements not explicitly set forth in the indictment can

reasonably be inferred.”

¶ 37 Possession of a stolen vehicle is defined as:

“(1) A person not entitled to the possession of a vehicle or essential part of a

vehicle to receive, possess, conceal, sell, dispose, or transfer it, knowing it to have

been stolen or converted. Knowledge that a vehicle or essential part is stolen or

converted may be inferred: (A) from the surrounding facts and circumstances,

which would lead a reasonable person to believe that the vehicle or essential part is

stolen or converted; or (B) if the person exercises exclusive unexplained possession

over the stolen or converted vehicle or essential part, regardless of whether the date

on which the vehicle or essential part was stolen is recent or remote;* * * ” 625

ILCS 5/4-103(a) (West 2018)

¶ 38 Criminal trespass is defined as follows:

“(a) A person commits criminal trespass to vehicles when he or she knowingly

and without authority enters any part of or operates any vehicle, aircraft,

watercraft or snowmobile.

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(b) Sentence. Criminal trespass to vehicles is a Class A misdemeanor.” 720 ILCS

5/21-2 (West 2018)

¶ 39 Here, the State concedes that criminal trespass to a vehicle has been recognized as the

lesser included offense of possession of a stolen vehicle by this court. Further, based on the

indictment, the factual description of the charged offense of possession of a stolen vehicle broadly

describes the conduct necessary for the lesser offense of criminal trespass to a vehicle. Thomas,

. The indictment stated that defendant committed the offense of possession

of a stolen motor vehicle in that defendant, by being in possession of a motor vehicle, possessed

said vehicle knowing it to be stolen or converted. This language contained in the indictment for

possession of a stolen vehicle plainly and clearly contains the main outline or broad foundation of

the offense of criminal trespass to a vehicle. Although the charged offense did not set forth the

element of entry, which is required for criminal trespass to a vehicle, that element can be

reasonably inferred.

Having determined that criminal trespass to a vehicle is an uncharged

lesser included offense of the charged offense of possession of a stolen vehicle, we now turn to the

evidence. Kolton,

.

¶ 40 Jury instructions are intended to “provide the jury with correct legal rules that can be

applied to the evidence to guide the jury toward a proper verdict.” People v. Lovejoy,

(2009). “In a criminal case, the trial court is required to properly instruct the jury on the

elements of the offense, the burden of proof, and the presumption of innocence.”

“When

determining whether a defendant is entitled to a jury instruction on a lesser included offense, the

trial court is to consider whether there is some evidence in the record that, if believed by the jury,

will reduce the crime charged to a lesser offense.” People v. Eubanks,

.

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“When the court determines that there is insufficient evidence to justify the giving of a lesser

included offense instruction, the proper standard of review is abuse of discretion.”

¶ 41 The trial court concluded that no evidence presented at trial demonstrated that a criminal

trespass to a vehicle occurred because defendant was present when the car was taken by force, got

in the car, and two days later was caught driving the car. However, the State’s evidence also

demonstrated that defendant entered the vehicle without authority in what defendant described to

Freitag as an attempt to prevent the car from being stolen and to later return it to the owner.

Defendant told Freitag that the vehicle that was left running and as the man on the phone walked

away from the vehicle, he saw a group of people going towards it: so, he jumped in to keep them

from taking it. Defendant told Freitag that he drove away but returned to the area in an attempt to

find the man who he saw walk away from the vehicle that night. He continued to return to the area

until he was stopped by the police. Defendant told Freitag that he did not see an altercation between

anyone. Under the defendant’s account as to what had happened, no one had stolen the vehicle,

therefore, he was not in known possession of a stolen vehicle. This account, if believed by the jury,

could also be considered criminal trespass to a vehicle. Thus, we must conclude that defendant

was entitled to a jury instruction of the lesser included offense, because there was some evidence

that, if believed by the jury, would result in a lesser included offense. Eubanks,

,

¶ 72.

¶ 42 B. Plain Error

¶ 43 Generally, in order to preserve an issue on appeal, defendant must raise an objection at trial

and preserve it in a posttrial motion. People v. Bui,

(2008). Failure to

preserve an alleged error for review is a procedural default. People v. Rivera, 277 Ill. App. 3d

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811, 818 (1996). Defendant acknowledges his remaining claims have not been preserved and

seeks to have the remaining issues considered under the plain error doctrine.

¶ 44 Under the plain error doctrine, issues not properly preserved can be considered by a

reviewing court. Plain error review is appropriate under either of two circumstances: “(1) where

the evidence is so closely balanced, so as to preclude argument that an innocent person was

wrongfully convicted; or (2) where the alleged error is so substantial that it affected the

fundamental fairness of the proceeding, and remedying the error is necessary to preserve the

integrity of the judicial process.” Bui,

. Prior to invoking the plain error

doctrine, it is important to determine if any error actually occurred.

¶ 45 B. Sentencing

¶ 46 Defendant contends that he should not have been sentenced under the mandatory Class X

sentencing statute because section 5-4.5-95(b) (730 ILCS 5/5-4.5-95(b) (West 2018)) of the

Unified Code of Corrections (Code) considers whether the qualifying convictions would now be

classified as Class 2 or greater felonies. Defendant contends his 1994 offense for aggravated

discharge of a firearm, which the trial court here used as a predicate offense, would now be under

the exclusive jurisdiction of the juvenile court and would not be classified as a felony conviction

due to subsequent amendments made to the statute.

¶ 47 Defendant contends that in 2013, the legislature revised the Juvenile Court Act (Act) to

raise the maximum age for juvenile jurisdiction from 16 to 17 for offenses that were not subject to

automatic transfer. See Pub. Act 98-61 (eff. Jan 1, 2014) (amending 705 ILCS 405/5-120 (West

2018)). Additionally, under the amendments of 2016, defendants 15 years old and older accused

of committing a forcible felony in furtherance of an illegal gang activity and having a prior

adjudication or conviction, would presumptively be transferred out of juvenile court. See Pub. Act

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99-258 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5-805(2)(a) (West 2018)). Defendant

maintains he would not have been subject to such a transfer. Even though defendant was charged

with aggravated discharge of a firearm and attempted murder, defendant had no priors, and it was

a domestic matter, not in furtherance of any gang activity. These conditions, defendant contends

make it certain that his previous conviction would not now be classified as a Class 2 felony or

greater. Defendant acknowledges this claim was not raised below and seeks this court to review

the claim under the plain error doctrine. Defendant contends that whenever an improper sentencing

determination is made, it affects substantial rights and falls under the second prong of plain error,

making the error egregious.

¶ 48 The State contends that defendant forfeited this claim by not raising it previously, and that

no error occurred that would warrant plain error review by this court. They argue that defendant’s

1994 conviction for aggravated discharge of a firearm should not be excluded from the trial court’s

consideration of Class X sentencing because it was a Class 1 felony in 1994 and remains one today,

citing 720 ILCS 5/24-1.2(a)(2) (West 1994) and 720 ILCS 5/24-1.2(a)(2) (West 2018). Further,

the State contends that the changes made to the Juvenile Act are prospective only and not

retroactive. The issue is not whether defendant would now be convicted of the qualifying offense

but whether he was previously convicted of a qualifying offense citing Fitzsimmons v. Norgle,

(1984) as support. Therefore, the State concludes that this court should reject

defendant’s argument under the statute’s plain language.

¶ 49 The issue of statutory construction is a question of law, which we review de novo. People

v. Taylor,

(2006). The statute in question should be looked at in its entirety,

encompassing the subject it addresses and the legislature’s objective in enacting it.

Our inquiry

must begin with the language itself; this is the most reliable indicator of the legislature’s intent.

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“When the language of a statute is clear, it must be applied as written without resort to further aids

or tools of interpretation.”

We cannot remedy an apparent legislative oversight by rewriting a

statute in any way that is inconsistent with the statute’s clear and unambiguous language.

Only

when the statute is ambiguous may a court consider other tools to help determine the meaning.

¶ 50 The statute at issue here is section 5-4.5-995(b) of the Code which states, in pertinent part,

the following:

“(b) When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2

felony, except for an offense listed in subsection (c) of this Section, after having twice been

convicted in any state or federal court of an offense that contains the same elements as an

offense now (the date the Class 1 or Class 2 felony was committed) classified in Illinois as

a Class 2 or greater Class felony, except for an offense listed in subsection (c) of this

Section, and those charges are separately brought and tried and arise out of different series

of acts, that defendant shall be sentenced as a Class X offender. * * * ” 730 ILCS 5/5-4.5-

95(b) (West 2018).

¶ 51 This court has consistently held that the language of this statute is “clear and

unambiguous,” therefore its “focus is on the elements of the prior offense.” People v. Foreman,

. Since the statute is unambiguous, we need not consider the

legislative history. Id. at ¶ 43. Additionally, we have held that a previous conviction cannot be

used as a predicate offense under section 5-4.5-95(b) if it “would have been resolved with

delinquency proceedings in juvenile court rather than criminal proceedings.” People v. Miles,

. Therefore, we agree with defendant, had his 1994 conviction of

aggravated discharge of a firearm, been committed after the 2016 amendment, it would have been

resolved in juvenile court instead of the criminal courts because he was only 17 years old. He

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would not have been subject to automatic transfer, and the offenses he was charged with were not

offenses where a presumptive transfer would occur. See 705 ILCS 405/5-120 (West 2018) and 705

ILCS 405/5-130(1)(a) (West 2018). The 1994 conviction is not an offense that is an “offense now

* * * classified in Illinois as a Class 2 or greater Class felony.” 730 ILCS 5/5-4.5-95(b) (West

2018). The State’s brief asks this court to reframe the statute by arguing that the question should

be “whether he was previously convicted of a qualifying offense.” It is clear from the statute that

the words “now classified” requires the court to sentence a defendant according to the current

classifications at hand. Had the legislature included the term previously, in addition to “now”, it

would have expanded the scope of classifications that could have been used as predicate offenses

for Class X sentencing. However, the limited nature of “now” appears to demonstrate that the

legislature intended to only include that classification for sentencing.

¶ 52 The State’s reliance on Fitzsimmons, is unpersuasive.

. This court has

previously held that Fitzsimmons is not analogous to the case at hand where “the corresponding

indication of the legislature's intent, were not present.” People v. Williams,

. In Fitzsimmons, the supreme court was interpreting a different sentencing statute

and was not facing the statutory language included in section 5-4.5-95(b). Additionally, the court

at that time did not have the amendments to the Act as we do now which make it clear that the

amendment to the Act “provided some indication that the legislature intended to treat minors who

commit certain crimes differently from adults charged with those crimes.”

Therefore, there was

nothing for the courts to consider that would have made their predicate offenses subject to juvenile

jurisdiction instead of criminal proceedings as we now have.

¶ 53 We acknowledge the concern of our dissenting colleague; however, we disagree with the

dissent’s findings. The dissent finds that defendant abandoned his intent to return the vehicle

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because he had a car in the shop. However, the evidence demonstrated, through Freitag’s

testimony, that defendant was found near the scene of the crime. This bolstered defendant’s

statement to Freitag that he kept returning to the scene of the crime in an attempt to return it. He

did tell Freitag that having the car was helpful but never indicated that he abandoned his efforts to

find the owner. Whether or not this is story is credible is not a part of the analysis. The dissent

cites to McDonald partially, which states “defendant is entitled to a jury instruction on a lesser-

included offense when there is some evidence in the record that, if believed by a jury, will reduce

the crime charged to a lesser offense.”

. ¶ 25. However, McDonald also held that,

“the appropriate standard for determining whether a defendant is entitled to a jury instruction on a

lesser-included offense is whether there is some evidence in the record that, if believed by the jury,

will reduce the crime charged to a lesser offense; not whether there is some credible evidence.”

The testimony provided by Freitag produced some evidence that if believed by a jury could

reduce the crime of a lesser-included offense.

¶ 54 Based on the aforementioned findings, we conclude that an error did in fact occur with

regard to sentencing. People v. Bui,

(2008). Additionally, we find that

such a sentencing error was so egregious as to deny defendant a fair sentencing hearing, thus

satisfying the second prong of plain error. See People v. Polk,

, ¶ 15. An

additional term of years added to a defendant’s sentence because the wrong sentencing scheme

was used is an error so substantial that we must correct it in order to preserve the integrity of the

judicial process. Bui,

.

¶ 55 C. Closing Arguments

¶ 56 Defendant contends that the State committed reversible error when arguing to the jury that

the law prohibited officers from recording defendant’s statement to the police and that defendant

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did not give the police permission to record him. This statement was a misstatement of fact and

law that significantly undermined defendant’s attack on Freitag’s testimony regarding defendant’s

statement to him. Defendant’s theory was that the failure to record defendant’s statement was a

form of police misconduct. The State made the misstatements during their rebuttal; defendant’s

objection was overruled, leaving defendant without an opportunity to correct the misstatements of

law and fact. Defendant acknowledges that he did not preserve this objection in a post-trial motion

and seeks for this court to review the claim under the plain error doctrine, or in the alternative,

ineffective assistance of counsel for failing to preserve and argue the error in post-trial

proceedings.

¶ 57 The State contends that defendant forfeited this claim by not including it in a post-trial

motion and no error occurred that would warrant plain error review by this court. The State argues

that their comments during closing arguments were properly based on the evidence and reasonable

inferences therein and were invited by defense counsel arguments. The State was responding to

remarks made by defense counsel that defendant’s statement was not recorded by Freitag. The

State intended to clarify to the jury that Freitag was not required to video record defendant’s

statement pursuant to 725 ILCS 5/103-2.1(b),(b5) (West 2018), and could not do so without

seeking defendant’s permission. The State contends that the offense of possession of a stolen

vehicle is not one of the enumerated offenses requiring electronic recording of a defendant’s

custodial statement.

¶ 58 The State provided a substantive argument of the proper standard of review within their

footnotes, which this court has previously held is improper. Technology Solutions Co. v. Northrop

Corp.,

(2005). However, the footnotes contained in the State’s response are

not excessive. Therefore, we decline to disregard them. The State contends that the proper standard

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of review is abuse of discretion, which has been determined recently by our supreme court in

People v. Jackson,

. We agree that Jackson is controlling, however, under

either standard a reversal is not warranted. Jackson held that, “[a] reviewing court will find

reversible error only if the defendant demonstrates that the remarks were improper and that they

were so prejudicial that real justice was denied, or the verdict resulted from the error.” Id. ¶ 83.

¶ 59 Prosecutors are given a wide latitude during opening statements and closing arguments.

People v. Nicholas,

(2006). “In reviewing a challenge to remarks made by the

State during closing argument, the comments must be considered in the context of the entire

closing statements of the parties.” People v. Williams,

(2000). Even if the

statement “exceeds the bounds of proper argument, the verdict must not be disturbed unless it can

be said that the remark caused substantial prejudice to the defendant.”

Additionally, a

prosecutor may respond to comments made by defense counsel that invite a response. People v.

Sykes,

. However, a prosecutor may not misstate the facts or argue

facts not in evidence. People v. Cruz,

.

¶ 60 In closing, defense counsel argued that the videotape was missing because of misconduct.

In the State’s rebuttal closing argument the prosecutor responded to this theory by stating,

“His statement isn't recorded. The police didn't record his statement because they followed

the law. Detective Freitag showed you the crime that he was charged with. That’s not a

crime that they can video record the Defendant. They can't just take out a camera and start

recording him. * * * ”

Section 5/103-2.1(b), (b-5), provides when statements may be used as evidence, each respective

offense listed requires recording. However, the statement made by the prosecutor indicated that

the detectives were prohibited from videotaping because it was not an enumerated offense, making

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the action of videotaping defendant unlawful. This is not what that specific statute provides, and

the State has not provided any authority that expresses this.

¶ 61 Additionally, the prosecutor stated,

“[a]nd he didn't give his permission to be recorded. So, no, there isn't a recording of that,

because the police followed proper procedures, and they did their job that day. The reason

Emmanuel was recorded was because he's not charged with a crime, he's the victim and.

guess what? He consented. He circled, on the form, I consent to being video recorded. I

consent to being audio recorded. That's why you have that recording of Emmanuel. * * * ”

This statement makes it appear that defendant’s refusal to consent was the reason the statement

was not recorded. Together these comments were misleading.

¶ 62 Although we agree with defendant that these statements were improper, we must determine

if they were so prejudicial as to deny real justice or if the verdict resulted in error. Jackson,

. The State’s misstatements were made amongst a lengthy closing argument but

were not the focus of the argument. Instead, the argument was focused on the entirety of the case.

The jury was admonished before and after closing arguments that the arguments were not evidence

and if something was said that did not match the evidence, they should disregard it. At trial, Freitag

testified that he never gave defendant the option of being recorded. Freitag also noted that this was

not the type of case where they videotape defendants who are in custody. Therefore, based on the

limited argument made, the evidence being available to clarify those statements, and the trial courts

consistent admonishments that the statements were not evidence, we find the statements were not

so prejudicial that real justice was denied or that the jury's verdict may have resulted from the

error.

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¶ 63 Since we have held that this did not result in prejudice, defendant's alternate claim of

ineffective assistance of counsel necessarily fails. People v. Clendenin, 238 Ill. 2d at 317-18.

Furthermore, we must also reject his request that we review this claim under plain error review

because he has failed to show an error existed. People v. Bui,

(2008).

¶ 64 CONCLUSION

¶ 65 We find that the trial court erred in refusing the jury instruction for criminal trespass to a

vehicle where there was some evidence presented, although by the State, that if believed by a jury,

could have resulted in a conviction for that lesser included offense. We further find that defendant

was improperly sentenced as a Class X offender. Nevertheless, while we agree that the comments

made by the prosecutor were improper, they were not so prejudicial to defendant that real justice

was denied or that the jury verdict may have resulted in error. For these reasons, we vacate

defendant’s conviction and sentence of possession of a stolen vehicle and remand for a new trial.

If the new trial results in conviction, the court shall not consider the 1994 aggravated discharge of

a firearm conviction for Class X sentencing.

¶ 66 Vacated and remanded.

¶ 67 JUSTICE HARRIS, dissenting:

¶ 68 I agree with the majority that defendant was improperly sentenced as a Class X offender,

and with the finding that the prosecutor’s improper comments were not so prejudicial to defendant

that the jury verdict may have resulted in error. However, I disagree with the determination that

the court erred in refusing to instruct the jury on the lesser-included offense of criminal trespass.

¶ 69 There is no authority that intent to permanently deprive is an element of the offense of

possession of a stolen motor vehicle. People v. Washington,

(1989).

However, the intent to permanently deprive element may come into play where the defendant was

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the alleged thief who stole the car. See People v. Cozart,

(1992); see

also People v. Pollards,

(2006) (finding that where a conviction for

possession is predicated on possession by the same person who committed the theft, and his intent

was not clearly established by the evidence, jury instructions that define theft as having the intent

to permanently deprive may be required). If it was the defendant who stole the vehicle, he could

be convicted of possession by showing he possessed the vehicle because “defendant would have

to know he had stolen or converted” the vehicle. People v. Cramer,

(1981). It

follows that if the defendant could show his mental state was inconsistent with that required for

theft, he could not be convicted of possession of a stolen motor vehicle. Washington,

.

¶ 70 Defendant contends that the State’s theory at trial was that he stole the Udoh’s Nissan. He

argues that his mental state was inconsistent with that required for theft because he took the vehicle

only to keep others from stealing it and intended to return the vehicle to the owner. However,

whether defendant intended to steal the Nissan when he took the car became a non-issue once he

kept the vehicle without authorization and without manifesting an intent to return it. “[T]he intent

to deprive an owner of his property may be inferred simply from the act of taking another's

property. Likewise, it may be inferred from the lack of evidence of intent to return the property or

to leave it in a place where the owner could safely recover it.” People v. Adams,

,

343–44 (1994).

¶ 71 Although defendant said that he only took the Udoh’s vehicle to keep others from stealing

it, and he intended to return the vehicle, the evidence showed otherwise. Defendant was found

driving the vehicle more than a day after the incident. He admitted that he could have taken the

vehicle to the police, but he did not. He could have also taken other measures, such as leaving the

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car at the place where he last saw Udoh or searching for information in the car that would identify

the owner. He did not do so. Rather, defendant explained that he kept the Udohs’ vehicle because

his car was in the shop. Defendant, however, did not have their permission to use the vehicle. The

evidence at trial thus showed an intent to deprive the Udohs of their property and contradicted

defendant’s claim that he intended to return the property to its rightful owner.

¶ 72 When there is a request for an instruction on a lesser-included offense, the court must

examine the evidence adduced at trial to determine whether it rationally supports a conviction for

the lesser-included offense. People v. Phillips,

(2008). Defendant is

entitled to a jury instruction on a lesser-included offense when there is some evidence in the record

that, if believed by a jury, will reduce the crime charged to a lesser offense. People v. McDonald,

. ¶ 25. Given the lack of evidence establishing defendant’s intent to return the

vehicle or leave it in a place where the Udohs could safely recover it, the trial court did not abuse

its discretion in refusing to give a jury instruction on criminal trespass. See Id. ¶ 57. Therefore, I

respectfully dissent.

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