{ "id": 4307448, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVERT WHITE, Defendant-Appellant", "name_abbreviation": "People v. White", "decision_date": "2011-01-07", "docket_number": "No. 1\u201408\u20143090", "first_page": "224", "last_page": "237", "citations": [ { "type": "official", "cite": "407 Ill. App. 3d 224" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "218 Ill. 2d 553", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "362 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260566 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "821", "parenthetical": "\"a presentence report, like the one in the instant case, is generally a reliable source for the purpose of inquiring into a defendant's criminal history\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0815-01" ] }, { "cite": "219 Ill. 2d 583", "category": "reporters:state", "reporter": "Ill. 2d", "year": 2006, "opinion_index": 0 }, { "cite": "362 Ill. App. 3d 953", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260743 ], "year": 2005, "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0953-01" ] }, { "cite": "368 Ill. App. 3d 381", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4267190 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "393" }, { "page": "393", "parenthetical": "holding that \"in finding that an enhanced sentence was warranted, the sentencing court was entitled to rely on evidence *** in defendant's PSI\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0381-01" ] }, { "cite": "544 U.S. 13", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5879404 ], "year": 2005, "pin_cites": [ { "page": "16-26" } ], "opinion_index": 0, "case_paths": [ "/us/544/0013-01" ] }, { "cite": "196 Ill. 2d 269", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351226 ], "year": 2001, "pin_cites": [ { "page": "279" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0269-01" ] }, { "cite": "149 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599591 ], "year": 1992, "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0467-01" ] }, { "cite": "226 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3610581 ], "year": 2007, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/226/0092-01" ] }, { "cite": "275 Ill. App. 3d 115", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 906713 ], "year": 1995, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/275/0115-01" ] }, { "cite": "161 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783181 ], "year": 1994, "pin_cites": [ { "page": "39-40", "parenthetical": "\"It is a fundamental tenet of our criminal justice system *** that the introduction of evidence of other crimes to show or suggest a propensity to commit crime is an improper purpose and is prohibited.\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0001-01" ] }, { "cite": "159 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 781339 ], "year": 1994, "pin_cites": [ { "page": "38-39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/159/0001-01" ] }, { "cite": "262 Ill. App. 3d 439", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2849540 ], "year": 1992, "pin_cites": [ { "page": "461", "parenthetical": "\"A reviewing court may not simply substitute its judgment for that of the trial court on a matter within the trial court's discretion.\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0439-01" ] }, { "cite": "186 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243932 ], "year": 1999, "pin_cites": [ { "page": "462-63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0450-01" ] }, { "cite": "333 Ill. App. 3d 272", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 486424 ], "year": 2002, "pin_cites": [ { "page": "279-80" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0272-01" ] }, { "cite": "351 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083944 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "466-67" }, { "page": "467" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0464-01" ] }, { "cite": "338 Ill. App. 3d 540", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 25343 ], "year": 2003, "pin_cites": [ { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/338/0540-01" ] }, { "cite": "402 Ill. App. 3d 47", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5769105 ], "year": 2010, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/402/0047-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "year": 2005, "pin_cites": [ { "page": "178" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "91 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092094 ], "year": 1982, "pin_cites": [ { "page": "188" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0178-01" ] }, { "cite": "235 Ill. 2d 478", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3625059 ], "weight": 2, "year": 2009, "pin_cites": [ { "page": "495" }, { "page": "495" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/235/0478-01" ] }, { "cite": "238 Ill. 2d 74", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3630639 ], "year": 2010, "pin_cites": [ { "page": "118" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/238/0074-01" ] }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "year": 1988, "pin_cites": [ { "page": "186", "parenthetical": "\"failure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "405 Ill. App. 3d 544", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3716697 ], "year": 2010, "pin_cites": [ { "page": "548", "parenthetical": "\"Rule 431(b) does not dictate a particular methodology for establishing the venire's understanding or acceptance of those principles.\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/405/0544-01" ] }, { "cite": "396 Ill. App. 3d 465", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4292439 ], "year": 2009, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/0465-01" ] }, { "cite": "238 Ill. 2d 598", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3630758 ], "weight": 2, "year": 2010, "pin_cites": [ { "page": "607" }, { "page": "614-15" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/238/0598-01" ] } ], "analysis": { "cardinality": 1208, "char_count": 33119, "ocr_confidence": 0.768, "pagerank": { "raw": 4.947487136851577e-08, "percentile": 0.31136931149267777 }, "sha256": "2e8c8d9154d18d5c15cfdf29c75c392b105f7480fe5fb4ffb1db702c9a073e80", "simhash": "1:ab249120530e9df6", "word_count": 5446 }, "last_updated": "2023-07-14T15:37:05.247121+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVERT WHITE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE EPSTEIN\ndelivered the judgment of the court, with opinion.\nJustices Fitzgerald Smith and Joseph Gordon concurred in the judgment and opinion.\nOPINION\nDefendant Calvert White appeals from a burglary conviction in October 2008 following a jury trial. He maintains he is entitled to a new trial based on the prosecutor\u2019s closing argument; the trial court\u2019s alleged failure to comply with Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)); and the trial court\u2019s allegedly improper admission of defendant\u2019s two prior convictions. Defendant further claims the trial court unconstitutionally enhanced his sentence under section 5\u20145\u20143(c)(8) of the Unified Code of Corrections (730 ILCS 5/5\u20145\u20143(c)(8) (West 2008)), warranting a resentencing. For the reasons stated below, we affirm.\nBACKGROUND\nDefendant was arrested for burglary on June 28, 2007, shortly after 1:30 a.m. He took a decoy purse from an unmarked police car. Defendant testified at trial that he took the purse, as well as a carton of cigarettes and a bottle, from the car, believing they belonged to \u201cSlim,\u201d someone he knew. Slim allegedly directed defendant to take the items out of the car and watch them while Slim ran into a liquor store that was about to close. Defendant was arrested when he started to cross the street, allegedly intending to merely sit at the bus stop across the street and wait for Slim.\nThe State called three witnesses. Officer Brian Rodriguez testified that he was part of the burglary investigation on June 28, 2007, that led to defendant\u2019s arrest. The area at which defendant was arrested allegedly had an ongoing problem of thefts from cars. Officer Rodriguez\u2019s role was to watch the decoy purse that had been placed on the passenger seat of the unmarked police car. The car was approximately 45 to 50 feet away from him, with its windows completely open. Defendant allegedly approached the car, looked inside, backed up, and turned his head from side to side. He then approached the car a second time and removed the purse through the passenger window. Officer Rodriguez did not see defendant talking to anyone nor did he notice anyone around him. Defendant then allegedly placed the purse under his arm and walked away from the car, crossing the street. Officer Rodriguez radioed other officers and described defendant, who was then arrested.\nOfficer Billy Todde, another member of the investigation team, testified that he parked the unmarked car at the scene, placed the decoy purse on the front seat, lowered the windows, and walked away. He then entered another unmarked car to await further instructions from Officer Rodriguez. After being notified that defendant had taken the purse, Officer Todde returned to the scene and stopped defendant in the middle of the street, about 30 feet from the car. He found the purse in defendant\u2019s possession and arrested him.\nOfficer Mark Schlink, the State\u2019s rebuttal witness, affirmed Officer Todde\u2019s testimony and added that defendant was carrying only the decoy purse and nothing else. The State also offered, in rebuttal, certified copies of defendant\u2019s two misdemeanor retail theft convictions from May 20, 1999, and May 17, 1999 (People\u2019s Exhibits 2 and 3). The trial court admitted those convictions, but barred the introduction of defendant\u2019s two other misdemeanor theft convictions from 1998 and 1999, finding that the prejudicial impact outweighed the probative value. Defendant\u2019s convictions were admitted solely to impeach his testimony. Nonetheless, the prosecutor argued in closing that: \u201cThe defendant is a thief, and you know he\u2019s a thief because of People\u2019s Exhibit No. 2 and People\u2019s Exhibit No. 3.\u201d Defendant did not object. The trial court later instructed the jurors:\n\u201cAny evidence that was received for a limited purpose should not be considered by you for any other purpose. You should disregard testimony and exhibits which the Court has refused or stricken.\nThe evidence which you should consider consists only of the testimony of the witnesses and the exhibits which the Court has received.\n\u2756 \u2756 \u2756\nOpening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and they should be confined to the evidence and to reasonable inferences that can be drawn from the evidence.\nNeither opening statements nor closing arguments are evidence, as we talked about earlier, and any statement or argument made by the lawyers which is not based on any of the evidence should be disregarded.\n% \u2756 #\nEvidence of defendant\u2019s previous conviction of any offense may be considered by you only as it may effect his believability as a witnesses and must not be considered by you as evidence of his guilt of the offense which is he is charged.\u201d\nThe jury returned a guilty verdict. Defendant then filed a motion for acquittal and a new trial, arguing that the State had not sustained its burden and that his prior convictions were inadmissible. The motion was denied.\nAt sentencing, the trial court inquired whether the parties wished to amend defendant\u2019s presentencing investigation report (PSI). Defendant declined to do so, and the State corrected two convictions, without any objection. The State then argued in aggravation that a mandatory Class X sentence should be imposed because defendant allegedly had \u201c[a] 1991 conviction for possession for a controlled substance with intent to deliver, which was a class 1. And there is a 1999 conviction for delivery of a controlled substance, which was also a class 1.\u201d Although the PSI shows that defendant was convicted for delivery of a controlled substance in 1990, not 1999, defendant\u2019s counsel, who argued in mitigation, did not object to the prosecutor\u2019s statement or attempt to correct it.\nThe trial court imposed a Class X sentence, finding:\n\u201cIn taking into account, there [are] a lot of misdemeanor convictions in the defendant\u2019s history, and its true that he does have five prior felony convictions, the last of which was in, was from a 1990 case, later in 1991, so some 17 years before this case occurred. So I\u2019m taking all of those factors into consideration.\nBased upon the defendant\u2019s background, I find he is subject to mandatory class X sentencing, based upon the two convictions highlighted by the State. I\u2019ll sentence the defendant to six years, the minimum sentence under the law, in the Illinois Department of Corrections.\u201d\nDefendant did not object to the sentence nor did he file a postsentencing motion. He nevertheless maintains his sentence was unconstitutionally enhanced, that the trial court erred in admitting his two prior theft convictions, and that it failed to comply with Rule 431(b).\nANALYSIS\nA. Defendant Has Forfeited His Rule 431(b) Claim\n\u2022 1 Amended Supreme Court Rule 431(b) mandates:\n\u201cThe 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 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 the defendant\u2019s failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant\u2019s failure to testify when the defendant objects.\nThe court\u2019s method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section.\u201d Ill. S. Ct. R. 431(b) (eff. May 1, 2007).\nAs recently explained by our supreme court:\n\u201cThe language of Rule 431(b) is clear and unambiguous. The rule states that the trial court \u2018shall ask\u2019 potential jurors whether they understand and accept the enumerated principles. While the prospective jurors may be questioned individually or in a group, the method of inquiry must \u2018provide each juror an opportunity to respond to specific questions concerning the Rule 431(b) principles.\u2019 The committee comments emphasize that trial courts may not simply give \u2018a broad statement of the applicable law followed by a general question concerning the juror\u2019s willingness to follow the law.\u2019 177 Ill. 2d R. 431, Committee Comments.\nRule 431(b), therefore, 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.\u201d People v. Thompson, 238 Ill. 2d 598, 607 (2010).\nHere, the trial court instructed the jurors:\n\u201cUnder our law, a defendant is presumed to he innocent of the charge placed against him. The presumption of innocence stays with the defendant throughout the whole trial even during your deliberations on the verdict and it\u2019s not overcome unless from looking at all of the evidence in the case you are convinced beyond a reasonable doubt that the defendant is guilty.\nThe defendant is not required to prove his innocence and that means the defendant does not have to call any witnesses, the defendant himself does not have to testify, that\u2019s true in this case and in every criminal case across the country. The reason for that is it\u2019s the State\u2019s burden of proving somebody guilty beyond a reasonable doubt by themselves. The defendant does not have to put on any evidence at all.\u201d\nThe court continued:\n\u201cAs I just stated a couple of minutes ago, the defendant in this case just like every criminal case across our country is presumed to be innocent of the charge against him, and what that means is that he doesn\u2019t have to put any evidence forward on his own behalf, he must be proven guilty beyond a reasonable doubt by the State. Raise your hand if you don\u2019t understand that. Nobody is raising your hand as I expected \u2014 I\u2019m sorry, you are raising your hand. What is your name, ma\u2019am.\nPROSPECTIVE JUROR: Essie Bowman.\nTHE COURT: Okay.\nPROSPECTIVE JUROR: I hear everything you are saying but I don\u2019t pick all that, I have special need, people help me when I\u2014\nTHE COURT: Ms. Bowman, what I\u2019m going to ask the attorneys to do is write down your name so if you happen to be any of the people that we talk to individually, Ms. Bowman, I will talk to you more fully about that, okay.\nPROSPECTIVE JUROR: Okay.\nTHE COURT: There are no other hands raised. Other than Ms. Bowman, is there anybody here even though you understand, anybody here who has some fundamental problem with that cornerstone of our criminal justice system?\n(No response.)\nTHE COURT: Nobody is raising their hand.\u201d\nThe trial court sufficiently complied with Rule 431(b) with respect to the State\u2019s burden of proof, defendant\u2019s evidentiary burden, and the presumption of innocence. Defendant disagrees, arguing that the trial court\u2019s inquiry improperly \u201cblurred the distinction between the individuals principles and did not afford the prospective jurors an adequate opportunity to express doubt or bias about the individual concepts.\u201d This argument fails. We have already held that Rule 431(b)\n\u201cdoes not identify or dictate a particular methodology for establishing the understanding or acceptance of the venire as to those principles.\nImportantly, the rule speaks of \u2018principles\u2019 instead of questions. Likewise, the rule does not set out these principles in the form of questions to be posed in haec verba. Nor does the rule provide for any \u2018magic words\u2019 or \u2018catechism\u2019 in order to satisfy its mandate.\u201d People v. Vargas, 396 Ill. App. 3d 465, 472 (2009).\nPeople v. Digby, 405 Ill. App. 3d 544, 548 (2010) (\u201cRule 431(b) does not dictate a particular methodology for establishing the venire\u2019s understanding or acceptance of those principles.\u201d). The trial court sufficiently inquired whether the potential jurors understood and accepted the State\u2019s burden of proof, defendant\u2019s evidentiary burden, and the presumption of innocence.\nAs for the fourth principle in Rule 431(b), the trial court instructed the jurors:\n\u201c[Defendant doesn\u2019t have to present any evidence, that means he doesn\u2019t have to testify on his own behalf. If the defendant decides not to testify on his own behalf, that\u2019s one of his rights, guaranteed to him as a citizen of this country and you must not and cannot hold it against him. Is there anybody here who couldn\u2019t follow the law in that regard?\n(No response.)\nTHE COURT: Nobody is raising their hand.\u201d\nWhile this was sufficient to determine whether the jurors accepted defendant\u2019s right not to testify, it did not ask whether the potential jurors understood that right. This inquiry does not satisfy Rule 431(b). Defendant did not, however, raise this issue in the trial court. Although that would generally waive the alleged error on appeal (People v. Enoch, 122 Ill. 2d 176, 186 (1988) (\u201cfailure to raise an issue in a written motion for a new trial results in a waiver of that issue on appeal\u201d)), defendant claims Rule 431(b) objections may not be waived or, alternatively, application of the waiver rule should be relaxed for Rule 431(b) claims. Our supreme court recently rejected both arguments, however, stating:\n\u201cTo preserve a claim for review, a defendant must both object at trial and include the alleged error in a written posttrial motion. [Citation.] Here, defendant did not object to the trial court\u2019s failure to comply with Rule 431(b) or include that issue in his posttrial motion. Accordingly, we agree that defendant has forfeited appellate review of his claim.\nIn support of his argument on relaxing the forfeiture rule, defendant raises what this court has termed the \u2018Sprinkle doctrine.\u2019 We recently explained that under the Sprinkle doctrine, the forfeiture rule may be relaxed when a trial judge oversteps his or her authority in the presence of the jury or when counsel has been effectively prevented from objecting because it would have \u2018 \u201cfallen on deaf ears.\u201d \u2019 People v. Hanson, 238 Ill. 2d 74, 118 (2010), quoting McLaurin, 235 Ill. 2d at 488. The failure to preserve an error will be excused under the Sprinkle doctrine only in extraordinary circumstances, however, such as when a judge makes inappropriate remarks to a jury or relies on social commentary instead of evidence in imposing a death sentence. [Citations.] We have stressed the importance of applying the forfeiture rule uniformly except in compelling situations because failure to raise a claim properly denies the trial court an opportunity to correct an error or grant a new trial, thus wasting time and judicial resources. [Citation.]\nIn this case, there is no indication that the trial court would have ignored an objection to the Rule 431(b) questioning. We presume that the trial court would have complied with the mandatory language of Supreme Court Rule 431(b) had the error been pointed out at trial. Moreover, defendant does not argue that the trial court overstepped its authority in the jury\u2019s presence. A simple objection would have allowed the trial court to correct the error during voir dire. Accordingly, we conclude there is no compelling reason to relax the forfeiture rule in this case.\u201d Thompson, 238 Ill. 2d at 611-12.\nThe same result is warranted here. Defendant has not demonstrated that his objection would have been disregarded by the court nor has he established any other compelling reason for relaxing the forfeiture rule.\nWhere, as in this case, \u201cthe defendant fails to make a timely objection and therefore forfeits review, the reviewing court will [nonetheless] examine the record only for plain error.\u201d People v. McLaurin, 235 Ill. 2d 478, 495 (2009). \u201cPlain error is a narrow and limited exception to the general waiver rule.\u201d People v. Pastorino, 91 Ill. 2d 178, 188 (1982). It applies only\n\u201cwhen (1) 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, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d People v. Piatkowski, 225 Ill. 2d 551, 565 (2007).\n\u201cIn a plain-error review, the burden of persuasion remains on the defendant.\u201d McLaurin, 235 Ill. 2d at 495.\nDefendant claims both prongs of plain-error review. The first prong applies \u201cwhere the evidence in a case is so closely balanced that the jury\u2019s guilty verdict may have resulted from the error and not the evidence.\u201d People v. Herron, 215 Ill. 2d 167, 178 (2005). The court must \u201cconsider whether the outcome of defendant\u2019s trial may have been affected by the trial court\u2019s failure to ask potential jurors if they *** understood that defendant had the right not to testify ***. The defendant must establish that the error alone could have led to his conviction.\u201d (Emphasis added.) People v. Willis, 402 Ill. App. 3d 47, 54 (2010). That has not been done here. Even if the evidence was closely balanced, the trial court\u2019s failure to inquire whether the potential jurors understood defendant\u2019s right not to testify was of no consequence since defendant testified at trial and the trial court instructed the potential jurors of defendant\u2019s right not to testify. No plain error occurred under the first prong of review.\nWith respect to the second prong, defendant claims the trial court\u2019s error deprived him of a fair trial by an impartial jury. Defendant has not provided any evidence, however, demonstrating that the jury was biased. As recently clarified by our supreme court, mere violation of Rule 431(b) does not render a jury biased nor warrant automatic reversal under the second prong of plain-error review:\n\u201cA finding that defendant was tried by a biased jury would certainly satisfy the second prong of plain-error review because it would affect his right to a fair trial and challenge the integrity of the judicial process. Critically, however, defendant has not presented any evidence that the jury was biased in this case. Defendant has the burden of persuasion on this issue. We cannot presume the jury was biased simply because the trial court erred in conducting the Rule 431(b) questioning.\nOur amendment to Rule 431(b) does not indicate that compliance with the rule is now indispensable to a fair trial. As we have explained, the failure to conduct Rule 431(b) questioning does not necessarily result in a biased jury, regardless of whether that questioning is mandatory or permissive under our rule. Although the amendment to the rule serves to promote the selection of an impartial jury by making questioning mandatory, Rule 431(b) questioning is only one method of helping to ensure the selection of an impartial jury. [Citation.] It is not the only means of achieving that objective. A violation of Rule 431(b) does not implicate a fundamental right or constitutional protection, but only involves a violation of this court\u2019s rules. [Citation.] Despite our amendment to the rule, we cannot conclude that Rule 431(b) questioning is indispensable to the selection of an impartial jury.\u201d Thompson, 238 Ill. 2d at 614-15.\nSince there is no evidence here that defendant\u2019s jury was biased, the second prong of plain-error review is inapplicable. Defendant has forfeited his Rule 431(b) claim.\nB. Defendant\u2019s Two Prior Theft Convictions Were Properly Admitted\n\u20222 \u201cA trial court\u2019s ruling on the admissibility of other-crimes evidence will not be reversed absent an abuse of discretion. [Citations.] An abuse of discretion occurs where the trial court\u2019s ruling is arbitrary, fanciful or where no reasonable person would take the view adopted by the trial court.\u201d People v. Childress, 338 Ill. App. 3d 540, 545 (2003). Defendant maintains here that the trial court erroneously admitted his two prior misdemeanor theft convictions.\n\u201cEvidence of prior convictions is admissible for impeachment purposes if (1) the witness\u2019s crime was punishable by death or by imprisonment for more than one year, or the crime involved dishonesty or false statement regardless of the punishment; (2) the witness\u2019s conviction or release from confinement, whichever date is later, occurred less than 10 years before the date of trial; and (3) the danger of unfair prejudice does not substantially outweigh the probative value of the conviction.\u201d People v. Whirl, 351 Ill. App. 3d 464, 466-67 (2004).\nDefendant claims his two convictions were of minimal probative value and were highly prejudicial, that the trial court failed to sufficiently weigh the age of the convictions, and that the trial court overlooked defendant\u2019s productive lifestyle since 1999.\n\u201cTrial judges are given factors to use when conducting the balancing test \u2014 an exercise in discretion. These include the nature of the prior conviction, its recency and similarity to the present charge, other circumstances surrounding the prior conviction, and the length of the witness\u2019s criminal record. [Citation.] Convictions of the same crime for which the defendant is on trial should be admitted \u2018sparingly.\u2019 [Citation.] However, the supreme court found no error where the trial judge in a burglary case allowed the defendant to be impeached with two prior burglary convictions.\u201d Stokes v. City of Chicago, 333 Ill. App. 3d 272, 279-80 (2002).\n\u201cThe trial court has discretion in the balancing test and in determining whether a prior conviction is admissible. [Citation.] However, the trial court should not apply the balancing test mechanically [citation], and the record must include some indication that the trial court was aware of its discretion to exclude a prior conviction [citation].\u201d Whirl,\n351 Ill. App. 3d at 467. The trial court need not articulate all the factors considered in its application of the balancing test. People v. Atkinson, 186 Ill. 2d 450, 462-63 (1999). The record here clearly reveals that the trial court was aware of its discretion and exercised it:\n\u201cI understand the arguments of both of the parties and I think that there is always a careful balancing test to be performed when admitting proof of other crimes. In this case, certainly the defendant is charged with burglary and the element is did he intend to commit a theft, so certainly it is somewhat prejudicial that the defendant\u2019s five prior felony convictions that fall within the scope of Montgomery are all thefts.\nOn the other hand, that has to be balanced against the defendant\u2019s testimony and his credibility. I think in this case, weighing the probative value versus the prejudicial effect, I find that it is relevant for the jurors to take into account the convictions listed under A and B, those two retail thefts. I think that suffices, for purposes of allowing the jurors an opportunity to evaluate the defendant\u2019s credibility in light of his background.\nWith respect to misdemeanors that you list in C, D and E which are again all thefts from \u201998 and \u201999, I\u2019m not going to allow those to come into evidence. I think that would be too prejudicial to let in five of them. I think they are going to be able to weigh his credibility sufficiently with two of the eligible five misdemeanor convictions. So that will be my ruling on that.\u201d\nRather than \u201cverbal homage\u201d to the balancing test, the trial court\u2019s ruling demonstrates reasoned application. While defendant\u2019s convictions were not recent, it cannot be said on the record sub judice that the trial court applied the balancing test improperly. That others may have reached a different result does not render the trial court\u2019s decision erroneous. People v. Chapman, 262 Ill. App. 3d 439, 461 (1992) (\u201cA reviewing court may not simply substitute its judgment for that of the trial court on a matter within the trial court\u2019s discretion.\u201d). The trial court did not abuse its discretion.\nC. The Prosecutor\u2019s Closing Arguments, Though Improper, Were Not Substantially Prejudicial\n\u20223 \u201cIt is well established that prosecutors are afforded wide latitude in closing argument, and improper remarks will not merit reversal unless they result in substantial prejudice to the defendant. [Citation.] In reviewing allegations of prosecutorial misconduct, the closing arguments of both the State and the defendant must be examined in their entirety, and the complained-of remarks must be placed in their proper context.\u201d People v. Kitchen, 159 Ill. 2d 1, 38-39 (1994).\nHere, the prosecutor argued in closing:\n\u201cYour verdict should be based on evidence and the evidence in this case comes from the witnesses\u2019 testimony and the evidence in this case comes from the exhibits that have been entered. The defendant is a thief, and you know he\u2019s a thief because of People\u2019s Exhibit No. 2 and People\u2019s Exhibit No. 3 [defendant\u2019s prior convictions]. The defendant paints a nice picture of himself not doing anything wrong but that doesn\u2019t mean that he wasn\u2019t doing anything wrong.\u201d\nThis argument was clearly improper and contrary to the law governing admission of prior convictions. People v. Williams, 161 Ill. 2d 1, 39-40 (1994) (\u201cIt is a fundamental tenet of our criminal justice system *** that the introduction of evidence of other crimes to show or suggest a propensity to commit crime is an improper purpose and is prohibited.\u201d). While we do not in any way condone the prosecutor\u2019s argument, defendant waived the issue by failing to object during closing or through a posttrial motion. \u201cGenerally, failure to object to any impropriety in counsel\u2019s closing argument results in waiver unless comments are so inflammatory and prejudicial that [defendant] is denied a fair trial.\u201d Limanowski v. Ashland Oil Co., 275 Ill. App. 3d 115, 118 (1995).\n\u201cIn reviewing comments made at closing arguments, this court asks whether or not the comments engender substantial prejudice against a defendant such that it is impossible to say whether or not a verdict of guilt resulted from them. [Citation.] Misconduct in closing argument is substantial and warrants reversal and a new trial if the improper remarks constituted a material factor in a defendant\u2019s conviction. [Citation.] If the jury could have reached a contrary verdict had the improper remarks not been made, or the reviewing court cannot say that the prosecutor\u2019s improper remarks did not contribute to the defendant\u2019s conviction, a new trial should be granted.\u201d People v. Wheeler, 226 Ill. 2d 92, 123 (2007).\nWe are not persuaded on the record sub judice that counsel\u2019s comment was so improper or so prejudicial as to warrant a new trial, particularly in light of the trial court\u2019s subsequent admonishment to the jury that:\n\u201cAny evidence that was received for a limited purpose should not be considered by you for any other purpose. You should disregard testimony and exhibits which the Court has refused or stricken.\nThe evidence which you should consider consists only of the testimony of the witnesses and the exhibits which the Court has received.\nS\u00a1t ifc s\u00a1t\nOpening statements are made by the attorneys to acquaint you with the facts they expect to prove. Closing arguments are made by the attorneys to discuss the facts and circumstances in the case and they should be confined to the evidence and to reasonable inferences that can be drawn from the evidence.\nNeither opening statements nor closing arguments are evidence, as we talked about earlier, and any statement or argument made by the lawyers which is not based on any of the evidence should be disregarded.\n$ ^ ^\nEvidence of defendant\u2019s previous conviction of any offense may be considered by you only as it may effect his believability as a witnesses and must not be considered by you as evidence of his guilt of the offense which is he is charged.\u201d\nWe are not persuaded that defendant was denied a fair trial.\nDefendant maintains reversal is nonetheless warranted because the underlying evidence here was closely balanced. Again, plain-error review may be invoked where \u201ca 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.\u201d Piatkowski, 225 Ill. 2d at 565. The evidence here was not, however, closely balanced. While defendant and the police officers called by the State provided competing versions of the events, the State also introduced two of defendant\u2019s prior convictions to impeach defendant\u2019s testimony credibility. We are not convinced the prosecutor\u2019s isolated misstatement during closing may have led to the jury\u2019s verdict. Plain-error review is inapplicable.\nD. Defendant\u2019s Sentence Is Affirmed\n\u20224 Defendant argues that the trial court unconstitutionally imposed a Class X sentence under section 5\u20145\u20143(c)(8) of the Unified Code of Corrections (730 ILCS 5/5\u20145\u20143(c)(8) (West 2008)) because the State did not prove the statutory elements therein beyond a reasonable doubt and the trial court impermissibly relied on defendant\u2019s presentencing investigation report (PSI) to determine the timing of defendant\u2019s prior crimes and convictions. \u201cTo be sentenced under the Class X provision, a defendant must have previously been twice convicted of a Class 2 or greater class felony, and the commission and conviction dates of the prior felonies must have occurred in the chronological order mandated by the statute.\u201d People v. Williams, 149 Ill. 2d 467, 473 (1992). Section 5\u20145\u20143(c)(8) mandates, in relevant part:\n\u201cWhen a defendant, over the age of 21 years, is convicted of a Class 1 or a Class 2 felony, after having twice been convicted in any state or federal court of an offense that contains the same elements as an offense now classified in Illinois as a Class 2 or greater Class felony and such charges are separately brought and tried and arise out of different series of acts, such defendant shall be sentenced as a Class X offender. This paragraph shall not apply unless (1) the first felony was committed after the effective date of this amendatory Act of 1977; and (2) the second felony was committed after conviction of the first; and (3) the third felony was committed after conviction of the second.\u201d 730 ILCS 5/5\u20145\u20143(c)(8) (West 2008).\nDefendant claims his sentence was unconstitutionally enhanced because the State failed to establish the timing of his prior offenses beyond a reasonable doubt and that it is \u201cconstitutionally insufficient for a sentencing judge to rely on lesser evidence \u2014 such as a PSI drafted by the Adult Probation Department \u2014 when determining the existence of sentence-enhancing facts.\u201d The State responds, inter alia, that defendant has forfeited this issue because he did not object or file a postsentencing motion.\nDefendant \u201cmay challenge the constitutionality of a statute at any time.\u201d People v. Wagener, 196 Ill. 2d 269, 279 (2001). We have already held, however, subsequent to Shepard v. United States, 544 U.S. 13, 16-26 (2005), that section 5\u20145\u20143(c)(8) is not unconstitutional and that the factors thereunder need not be proven beyond a reasonable doubt. People v. Yancy, 368 Ill. App. 3d 381, 393 (2005); accord People v. Matthews, 362 Ill. App. 3d 953 (2005), appeal denied, 219 Ill. 2d 583 (2006); People v. Rivera, 362 Ill. App. 3d 815 (2005), appeal denied, 218 Ill. 2d 553 (2006). Moreover, a trial court may rely on a PSI to impose a Class X sentence. Rivera, 362 Ill. App. 3d at 821 (\u201ca presentence report, like the one in the instant case, is generally a reliable source for the purpose of inquiring into a defendant\u2019s criminal history\u201d); Yancy, 368 Ill. App. 3d at 393 (holding that \u201cin finding that an enhanced sentence was warranted, the sentencing court was entitled to rely on evidence *** in defendant\u2019s PSI\u201d). Here, defendant\u2019s PSI shows two felony drug convictions: February 9, 1990, and February 14, 1991. Defendant\u2019s Illinois State Police criminal history record, included as part of the PSI, shows that the second offense occurred on August 2, 1990. Defendant\u2019s Class X sentence is affirmed.\nCONCLUSION\nWe affirm defendant\u2019s conviction and sentence. Although the trial court did not fully comply with Rule 431(b), defendant forfeited that issue by failing to timely object, and plain-error review is inapplicable. The trial court did not err in admitting defendant\u2019s two prior theft convictions, and the prosecutor\u2019s closing arguments, though improper, were not so prejudicial as to warrant a new trial.\nAffirmed.", "type": "majority", "author": "JUSTICE EPSTEIN" } ], "attorneys": [ "Michael J. Pelletier, Patricia Unsinn, and Megan E. Ledbetter, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Anita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Kathleen Warnick, and Joseph Preiser, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVERT WHITE, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201408\u20143090\nOpinion filed January 7, 2011.\nRehearing denied February 8, 2011.\nMichael J. Pelletier, Patricia Unsinn, and Megan E. Ledbetter, all of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nAnita M. Alvarez, State\u2019s Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Kathleen Warnick, and Joseph Preiser, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0224-01", "first_page_order": 240, "last_page_order": 253 }