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).

Order filed January 10, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 10th Judicial Circuit, ) Peoria County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-19-0455 v. ) Circuit No. 17-CF-727 ) ANDREW E. JACKSON, ) Honorable ) Paul P. Gilfillan, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justices McDade and Schmidt concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: (1) The State proved defendant guilty beyond a reasonable doubt of armed robbery. (2) The court’s definition of a firearm did not deprive defendant of his right to a fair trial. (3) The State’s comments during its closing argument were not reversible plain error. (4) The State did not commit reversible plain error when it improperly impeached a defense witness with extrinsic evidence.

¶2 Defendant, Andrew E. Jackson, argues that (1) the State failed to prove him guilty beyond

a reasonable doubt of armed robbery; (2) the Peoria County circuit court denied defendant a fair

trial where it failed to provide a complete definition of a firearm; (3) the State committed prosecutorial misconduct during its closing argument; and (4) the State erroneously used extrinsic

evidence to impeach John Born’s testimony on a collateral matter. We affirm.

¶3 I. BACKGROUND

¶4 The State charged defendant with armed robbery (720 ILCS 5/18-2(a)(2), (b) (West 2016)),

and aggravated robbery (id. § 18-1(b)(1), (c)). Defendant waived his right to counsel and

proceeded as a self-represented litigant during the pretrial proceedings and jury trial.

¶5 Adukeama Ball, a cashier at Dollar General, testified that on August 26, 2017, at

approximately 2:45 p.m. defendant asked Ball to open the register several times. While making

the demands, defendant’s hand was on the left side of his waistband, holding the handle of a black

firearm. Ball feared that defendant would use the firearm to shoot her. Ball informed defendant

that he would need to purchase an item to open the register. Defendant handed Ball an item that

she scanned. When the register opened, defendant reached over the counter and removed money.

Ball testified that she had seen photographs of firearms and confirmed that the object defendant

held at his waist was the handle of a firearm.

¶6 The State entered a surveillance video into evidence that showed Ball behind the counter

at a register while defendant stood on the other side of the counter. Defendant held the left side of

his waistband with his left hand. Defendant reached over the counter and removed money from

the register.

¶7 On cross-examination, defendant asked Ball if the firearm she observed had a hammer.

Ball indicated that she did know “what a hammer is.” Ball observed “the handle of a black gun

that [defendant] continuously held in [his] waistband.” Defendant then asked, “You’re 100 percent

sure you seen [sic] a firearm, but you’re not sure what the hammer of a firearm is?” Ball responded,

“I’m a hundred percent sure I [saw] a fire—a handle of a gun.” Ball said the object could not have

2 been a cell phone because she observed a “black gun handle.” Defendant asked what markings

indicated that it was a firearm. Ball responded, “[t]he handle itself. The handle of a gun is

distinctive. How a person holds the handle of a gun is just—it was a gun.” When questioned on

her familiarity with firearms, Ball stated, “I’m familiar enough to know if I [saw] one, I know a

gun is a gun.” Ball admitted that before the robbery she had never owned a firearm or held a

firearm. The following colloquy occurred between defendant and Ball regarding whether the object

defendant carried was a working firearm:

“Q. Did the gun shoot—was it a firearm, as in one that shot bullets? Can

you tell me that?

A. It was a gun. How would I know if it was working? It was a gun.

Q. So it could have been a bb gun?

A. You had a gun.

***

Q. Could it have been a bb gun?

***

[A.] I can’t answer that question.”

¶8 Mykisha Randall testified that she witnessed the robbery in Dollar General. When Randall

approached the register to pay for her items, she saw defendant reaching over the counter into the

register. Randall saw a black firearm that she subsequently identified as a pistol on the left side of

defendant’s waistband. Defendant removed the money from the register and left the store. Randall

did not own firearms but had seen firearms before. Randall saw the “butt” of the firearm hanging

out of defendant’s waistband. Randall said there was “[z]ero” chance that the object was a cell

phone.

3 ¶9 On cross-examination, Randall acknowledged that a woman stood between her and

defendant, but the woman did not obstruct Randall’s view. Randall was “positive[ ]” that she saw

defendant gripping the black handle of a pistol. Randall said the object could not have been a cell

phone, “[u]nless it was like a toy cell phone/gun combo, it wasn’t a cell phone.”

¶ 10 Peoria Police Officer Ryan Isonhart reported to the Dollar General on August 26, 2017, at

approximately 4:45 p.m. to investigate an armed robbery. Isonhart spoke to Ball and Randall and

received a description of the suspect. On cross-examination, defendant asked how Ball described

the firearm. Isonhart explained that when he interviews civilians he asks if the observed firearm

was a “cowboy-style gun” or similar to Isonhart’s black semiautomatic handgun. Ball likened

defendant’s firearm to Isonhart’s handgun. Isonhart’s firearm was in a holster where only the

handle was visible.

¶ 11 Peoria Police Sergeant David Smith testified that while investigating the robbery, he

observed the surveillance video from Dollar General of the incident. Smith identified defendant in

the video as the individual removing money from the register.

¶ 12 Defendant called John Born, his uncle and former landlord, to testify. A few days after

August 26, 2017, John moved defendant’s items out of the house that defendant rented. John did

not locate a firearm in defendant’s items. John did not know if defendant owned or possessed a

firearm. John said defendant kept his cell phone in a waistband clip.

¶ 13 On cross-examination, John denied that defendant was three months behind on rent but

said that defendant was approximately one month behind on rent. John communicated to

defendant’s mother that John wanted defendant to vacate his rental property. John identified a

photograph of defendant, which showed that defendant had an object in his shirt pocket that could

have been a cell phone.

4 ¶ 14 Diana Born, defendant’s aunt, testified that defendant always wore his cell phone in a belt

clip. Diana identified defendant in a photograph that showed defendant carrying a cell phone in

his shirt pocket. Diana did not know why defendant carried his cell phone in his shirt pocket or if

defendant had a belt clip for his phone on that day.

¶ 15 Defendant testified that on August 26, 2017, he entered Dollar General to purchase

something to eat when he decided to steal money from the register. Defendant thought, “[i]f I just

ask for the money, I’ll be able to go get high and go to rehab and get some help. *** I didn’t think

nothing of grabbing my phone during the incident.” Defendant denied that the object he held during

the robbery was a firearm. Defendant believed that he did not need a firearm to rob the store.

¶ 16 On cross-examination, defendant testified that he robbed the store as a cry for help because

defendant knew he needed drug rehabilitation treatment. Defendant planned to “go get high for

free, and then go to rehab.” Defendant turned himself in to police five days after the robbery. At

the time of the robbery, defendant was one month behind on rent.

¶ 17 In rebuttal, the State called Smith, who testified that when he interviewed John, John stated

that defendant was three months behind on rent.

¶ 18 The State entered into evidence a certified copy of defendant’s prior conviction for

attempted home invasion.

¶ 19 During its closing argument, the State argued defendant’s version of events was incredible.

The State contended that defendant wanted the jury to think

“[defendant] did [the robbery] on purpose, *** it was a cry for help because he’s

got a drug problem and this might set him on the right path. That, first of all,

[defendant] is trying to get you to believe the Hollywood version of what a drug

5 addict is. A person with a drug problem is not a person who automatically thinks to

victimize a person while they’re working at a register.

I think other people with a drug problem who heard that would be mightily

offended to be compared to *** that suggestion, that that’s how the average person

with a drug difficulty was. If he had a working phone in his pocket and knew he

needed help, he could have called somebody. He could have not gone in the store.

He could not have robbed the place.”

The State continued,

“This was no small, little cry for help, because he could have cried for help any

other number of ways.

And if it were a cry for help, his behavior would have been consistent with

someone doing that just to get arrested. I suppose that does happen, people who get

arrested on purpose. But then they’re there when the police show up.”

¶ 20 The State also commented on defendant’s cross-examination of the State’s witnesses. The

State said, “I was a little confused when the defendant tried to ridicule [Randall’s] description of

[the suspect].” The State characterized defendant’s cross-examination of Smith as “very

disingenuous[ ].” Regarding defendant’s questioning of Ball, the State said,

“I know [defendant] testified he was sorry, but he didn’t seem too sorry when he

was questioning [Ball] and giving her a hard time about what she saw. But his

whole attitude in questioning her was that this—and even his testimony is that this

is so obviously a phone sticking out. *** [Ball] would not be that upset if it was so

obviously a phone sticking out.”

¶ 21 The State argued that defendant’s witnesses were incredible.

6 “[Defendant’s] defense apparently is that ***, ‘Don’t worry everybody.

That’s just a phone in my waistband.’ By the way, that he’s only holding when he

goes up to the register, holding it the whole time he leans over the register and starts

digging the money out of the register. That’s his defense. So again, apply what you

know about the world and the people you met and how it turns, and ask yourself

this: Does that make any sense to you at all?

And first of all, please notice the inconsistencies in that whole fiction he’s

spinning you. He always carries his phone in his waistband, was his defense. ***

[John] kind of goes along with the story. ‘Sure, it’s always in his waistband.’

And then what do you see? A picture of him at a party some weeks before

with a phone in his shirt pocket, and somewhat go against his routine habit of

always carrying in his waistband. But does that make any sense at all? Why not his

pocket? Back pocket, front pocket, whatever. Why his waistband?

***

He then called his aunt and modified it a bit ***.

The aunt had no idea what he was talking about. *** What an awful position

he put his aunt and uncle in. I mean, they should have known better than to do it.

But clearly, when his aunt was sitting here and he starts asking about side clips and

the phone, she had no idea what [defendant] was talking about. It’s because it

wasn’t part of the script. [Defendant] changed it up on her. It’s hard to keep a story

straight when the story’s fiction and it’s involving three different people.

***

7 [Defendant] had a lot of options to him. Apparently, he’s got, at the very

least, an aunt and uncle who will do anything for him, including coming to court

with a nonsensical story.”

¶ 22 The State argued that Ball was not required to know the components of a firearm to be able

to identify a firearm. The State said,

“The defendant tried to ask [Ball], ‘Well, do you even know what a hammer

of a gun is?’ [Ball] didn’t know, probably because she doesn’t know as much about

guns as the defendant does. But everybody, I submit to you, knows what a gun

looks like. They’re not—sadly, they’re not all that uncommon. Even from the

movies or TV shows, everyone knows what the handle of a gun looks like. And she

was right up on it and saw it.”

The State further argued that Ball and Randall were

“[t]wo people that don’t even know each other and could describe [the firearm].

They could describe it to the extent that when the first officer showed up, he said

he always has to ask people, ‘Was it a cowboy gun,’ like *** if you’re familiar with

a revolver, ‘or a gun like the police had?’ And he had a gun and they pointed to his

gun and were like, ‘No. It’s like the one the police have.’ ”

¶ 23 Later, the State addressed the inconsistent testimony regarding defendant’s delinquent rent

payments, and stated,

“I appreciate his uncle says that he was behind for a month, and I proved he had

said before it was three months. *** [T]he uncle had told this defendant’s mother

that [defendant] needed to be out. He’s way behind. He’s getting out of his house.

The guy needed money.”

8 ¶ 24 Following closing arguments, the court provided the following instructions to the jury:

(1) “[t]he word ‘firearm’ means any device, by whatever name known, which is designed to expel

a projectile or projectiles by the action of an explosion, expansion of gas, or escape of gas”;

(2) counsel’s arguments were not evidence and “any statement or argument by the attorney or the

defendant which is not based on the evidence should be disregarded”; and (3) the jurors were the

“judges of the believability of the witnesses and of the weight to be given to the testimony of each

of them.”

¶ 25 The jury found defendant guilty of armed robbery and aggravated robbery. Defendant filed

a motion for a new trial. The court denied defendant’s motion. The court sentenced defendant to

22 years’ imprisonment. Defendant appeals.

¶ 26 II. ANALYSIS

¶ 27 A. Sufficiency of the Evidence

¶ 28 Defendant argues the State failed to prove him guilty beyond a reasonable doubt of armed

robbery because it failed to establish that defendant had a firearm during the robbery.

¶ 29 When a defendant makes a challenge to the sufficiency of the evidence, “ ‘the relevant

question is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.’ ” (Emphasis in original.) People v. Collins,

(1985) (quoting Jackson

v. Virginia,

(1979)). “When presented with a challenge to the sufficiency of the

evidence, it is not the function of this court to retry the defendant.”

“A conviction will be

reversed only where the evidence is so unreasonable, improbable, or unsatisfactory that it justifies

a reasonable doubt of the defendant’s guilt.” People v. Belknap,

, ¶ 67.

9 ¶ 30 To prove defendant guilty of armed robbery, the State needed to establish that defendant

knowingly took property by the use or threat of force while armed with a firearm. 720 ILCS 5/18-

1, 18-2(a)(2) (West 2016). For purposes of armed robbery, “Firearm” is defined under the Firearm

Owners Identification Card Act (FOID Act) as “any device, by whatever name known, which is

designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or

escape of gas.” 430 ILCS 65/1.1 (West 2016); People v. Wright,

, ¶ 71. Pneumatic,

spring, paint ball, “B-B” and signaling guns are excluded from the definition of a firearm. 430

ILCS 65/1.1 (West 2016). The testimony of a single witness is sufficient to establish that an object

is a firearm. Wright,

. “The trier of fact determines the credibility of the

witnesses, decides what weight to give their testimony, resolves conflicts in the evidence, and

draws reasonable inferences from that evidence.” People v. Swenson,

. When

presented with unequivocal testimony and circumstances that a witness viewed a firearm, a jury

may reasonably infer that defendant possessed a firearm as defined under the FOID Act. See

People v. Washington,

.

¶ 31 Defendant does not contest that he robbed Dollar General but argues that the State failed

to show that he carried a firearm while committing the robbery. Specifically, the witnesses who

testified that defendant held a firearm had no experience handling firearms.

¶ 32 Here, Ball and Randall repeatedly identified the object that defendant held in his waistband

during the robbery as the handle of a black firearm. Ball saw the handle of a black firearm when

defendant asked her to open the register. Ball said that she was “a hundred percent sure” that she

saw defendant holding the handle of a black firearm. Ball further identified defendant’s firearm as

similar to Isonhart’s handgun. Randall’s testimony confirmed Ball’s observation, as Randall also

saw defendant holding what she believed to be the handle of a black firearm. Both Randall and

10 Ball testified that they had previously observed firearms and expressed that the object in

defendant’s waistband was not a cell phone. Viewed in the light most favorable to the State, the

testimony of Ball and Randall proved beyond a reasonable doubt that the object in defendant’s

waistband was a firearm.

¶ 33 B. Plain Error

¶ 34 Defendant forfeited review of the following three arguments by failing to properly preserve

them below. People v. Enoch,

(1988) (to preserve an issue for appellate review,

a defendant must object to it at trial and raise it in a posttrial motion). However, defendant argues

that each of these errors is reversible under the plain error doctrine.

¶ 35 The plain error doctrine allows a reviewing court to consider an otherwise forfeited error

when “ ‘(1) the evidence is close, regardless of the seriousness of the error, or (2) the error is

serious, regardless of the closeness of the evidence.’ ” People v. Piatkowski,

(2007) (quoting People v. Herron,

(2005). Under the first prong, to determine

whether the evidence is close, “a reviewing court must evaluate the totality of the evidence and

conduct a qualitative, commonsense assessment of it within the context of the case.” People v.

Sebby,

. This analysis considers the elements of the charged offenses, along

with any evidence regarding witness credibility.

The determination is not one of the sufficiency

of the evidence, but “the closeness of sufficient evidence.” Id. ¶ 60. Under the second prong,

“[p]rejudice to the defendant is presumed because of the importance of the right involved.” Herron,

. The supreme court has equated the second prong of plain error review with

structural error such that “automatic reversal is only required where an error is deemed ‘structural,’

i.e., a systemic error which serves to ‘erode the integrity of the judicial process and undermine the

fairness of the defendant’s trial.’ ” People v. Glasper,

(2009) (quoting

11 Herron,

). The defendant bears the burden of persuasion under both prongs.

Herron,

. The first step of the plain error analysis is to determine whether an error

occurred. People v. Eppinger,

.

¶ 36 1. Jury Instruction Error

¶ 37 Defendant contends that the circuit court erroneously gave the jury an incomplete

definition of a firearm.

¶ 38 The determination of which instruction shall be given to a jury lies within the circuit court’s

discretion and will not be overturned absent an abuse of that discretion. People v. Banks,

(1997). Whether the jury instructions accurately conveyed the applicable law to

the jury is reviewed de novo. People v. Fonder,

.

¶ 39 Assuming for the sake of argument that the court’s failure to instruct the jury using the

complete FOID Act definition of a firearm was error, that error was not a reversible plain error.

First, the evidence of defendant’s commission of armed robbery was not close. Ball testified that

she was certain the object that defendant held while robbing the Dollar General was a firearm like

Isonhart’s handgun. Randall similarly testified that the object that defendant carried was a pistol.

Randall indicated that the pistol could not have been a cell phone, stating, “[u]nless it was like a

toy cell phone/gun combo, it wasn’t a cell phone.” Moreover, defendant’s testimony that the object

was a cell phone did not outweigh Ball and Randall’s consistent and conclusive testimony that

identified the item as a firearm. Therefore, the evidence was not closely balanced, and the omitted

instruction was not a reversible error under the first prong of plain error.

¶ 40 Second, the instruction error does not warrant reversal under the second prong of the plain

error analysis because the error was not so serious that it affected the fairness of defendant’s trial

12 and challenged the integrity of the judicial process. Therefore, the circuit court did not commit

plain error by giving an incomplete instruction regarding the definition of a firearm.

¶ 41 2. Prosecutorial Misconduct

¶ 42 Defendant contends the following acts of prosecutorial misconduct in the State’s closing

argument deprived him of a fair trial, the State: (a) misstated the evidence and the law; (b) accused

defendant of inducing perjury; (c) disparaged defendant for exercising his right to cross-examine

witnesses; and (d) improperly bolstered the credibility of its witnesses.

¶ 43 “Closing arguments must be viewed in their entirety and the allegedly erroneous argument

must be viewed contextually.” People v. Blue,

(2000). “Generally, improper

closing arguments by the State will constitute reversible error only if there is doubt as to whether

the jury would have rendered a guilty verdict in the absence of the comments.” People v. Libberton,

(2003).

¶ 44 a. Misstating the Evidence and Law

¶ 45 Defendant argues the State misstated evidence where it asserted defendant wanted the jury

to “believe the Hollywood version of what a drug addict is” and that if the robbery “were a cry for

help, his behavior would have been consistent with someone doing that just to get arrested.”

¶ 46 Here, defendant testified that he robbed Dollar General so that he could “get high and go

to rehab and get some help.” The State’s comments were made in response to this testimony and

sought to have the jury consider the credibility of defendant’s testimony. Therefore, viewing the

argument in context, the statements were not improper. See, e.g., Glasper,

(finding the State’s closing argument comment was not error because they were invited by defense

counsel’s comments).

¶ 47 b. Accused Defendant of Inducing Perjury

13 ¶ 48 Defendant argues that the State improperly suggested that defendant induced two

witnesses, John and Diana, to perjure themselves on defendant’s behalf. Generally, a closing

argument that suggests that the defense suborned perjury is improper. People v. Emerson,

(1983).

¶ 49 Even if we were to assume that the State erred by suggesting defendant induced witnesses

to lie, the error would not rise to the level of reversible plain error. First, we previously determined

that the evidence was not closely balanced. Supra ¶ 39. Second, this error is not reversible under

the second prong because it is not so prejudicial that it eroded the integrity of the judicial process.

Moreover, any prejudice that flowed from this error was greatly reduced by the court’s jury

instruction that arguments were not evidence and that “any statement or argument made by the

attorney or the defendant which is not based on the evidence should be disregarded.” See People

v. Ramsey,

(2010) (the act of properly sustaining an objection to an improper

comment and instructing the jury to disregard it is usually sufficient to eliminate any prejudice).

Although defendant did not object to the improper comment, the court’s instruction greatly

reduced the amount of prejudice flowing from it such that the improper comment did not erode the

integrity of the proceeding.

¶ 50 c. Defendant’s Right to Cross-Examine Witnesses

¶ 51 Defendant argues “[i]t was reversible error for the prosecutor to use [defendant’s] decision

to exercise his right to cross-examine witnesses against him.” Specifically, defendant points to the

State’s comments regarding defendant’s cross-examination of Ball, Randall, and Smith.

¶ 52 The sixth amendment of the United States Constitution provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him

***.” U.S. Const., amend. VI. The Supreme Court described this requirement as “confrontation

14 plus cross-examination of witnesses.” Perry v. New Hampshire,

(2012).

Generally, “[n]egative comments about a defendant’s exercise of his or her constitutional rights

are improper because they penalize the defendant for the exercise of those rights.” Libberton,

.

¶ 53 Here, viewed in the context of the entire closing argument, the State did not criticize

defendant’s right to cross-examine witnesses. Instead, the State commented on the manner that

defendant cross-examined the witnesses. Cf.

(finding error where the State’s argument

suggested that a decent person in defendant’s position would have waived his right to a trial and

pled guilty). Therefore, the State’s comment on defendant’s method of cross-examination was not

error.

¶ 54 d. Bolstering the Credibility of its Witnesses

¶ 55 Defendant argues that the State misstated the evidence and improperly bolstered the

credibility of its witnesses. First, the State informed the jury that it had proved defendant carried a

firearm because “everybody *** knows what a gun looks like.” Second, the State misstated the

facts to suggest that the witnesses observed Isonhart’s firearm immediately following the robbery.

Third, the State suggested that both witnesses observed Isonhart’s firearm.

¶ 56 Here, we will assume for the sake of argument that the State’s comments in closing

argument were error. However, this error was not a reversible plain error as the evidence was not

closely balanced. Supra ¶ 39. Further, the error was not of such magnitude that it eroded the

integrity of the judicial process and infringed on defendant’s right to a fair trial. Any prejudice

caused by the error was limited by the court’s instruction to the jury that arguments were not

evidence, that “any statement or argument made by the attorney or the defendant which is not

based on the evidence should be disregarded,” and that the jurors “are the judges of the

15 believability of the witnesses.” See Ramsey,

. Accordingly, this misstatement of

evidence is not a reversible plain error.

¶ 57 3. Improper Impeachment

¶ 58 Defendant contends that the State improperly impeached John with extrinsic evidence of

the number of defendant’s delinquent rent payments.

¶ 59 “Generally, any permissible kind of impeaching matter may be developed on cross-

examination ***.” Collins,

. However, extrinsic evidence may not be introduced

to impeach a witness’s testimony about a collateral issue, and the examiner must accept the

witness’s answer. People v. Terrell,

(1998). An issue is considered collateral

if the subject matter is not relevant for any purpose other than to contradict the testimony of the

witness. People v. Santos,

(2004). A matter is not collateral if the subject

matter is relevant in the litigation to establish a fact of consequence. People v. Hayes,

(2004). The court has the discretion to determine the latitude on cross-examination,

rebuttal, and when determining whether an issue is collateral. Collins,

. A

reviewing court should not interfere unless there is a clear abuse of discretion.

¶ 60 In the present case, the issue of whether defendant was behind one or three months of rent

was not a fact of consequence regarding the armed robbery and was an improper collateral issue.

However, defendant failed to establish plain error where the evidence was not closely balanced,

and the error did not erode the integrity of the judicial process and deprive defendant of a fair trial.

Supra ¶ 39.

¶ 61 III. CONCLUSION

¶ 62 The judgment of the circuit court of Peoria County is affirmed.

¶ 63 Affirmed.

16