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The People of the State of Illinois v. Alex Lopez

June 22, 2012

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALEX LOPEZ,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 08 CR 21389 Honorable Lawrence P. Fox, Judges Presiding.

The opinion of the court was delivered by: Presiding Justice Epstein

PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices Joseph Gordon and McBride concurred in the judgment and opinion.

OPINION

¶ 1 After a jury trial, defendant Alex Lopez was convicted of criminal sexual abuse and unlawful restraint. He was sentenced to four years in prison. Defendant argues on appeal that:

(1) the trial court denied his right to a trial by an impartial jury by making numerous comments before the jury conveying the impression that his "defense counsel was incompetent and his defense a waste of time"; (2) the trial court violated his right to due process of law by indicating, prior to closing argument, that it might impose unequal time limits on defense and State closing arguments; and (3) the State improperly vouched for the credibility of the complaining witness and suggested irrelevant considerations during closing. We affirm.

¶ 2 BACKGROUND

¶ 3 On November 12, 2008, defendant was charged with attempted criminal sexual assault, criminal sexual abuse, and unlawful restraint. Defendant pleaded not guilty and his jury trial commenced on March 8, 2010.

¶ 4 I. State's Case in Chief

¶ 5 A. MS

¶ 6 The State first called the complaining witness, MS, who testified to the following version of events. In October 2008, MS was a 17-year-old junior in high school and lived at home with her mother and her brother. Her uncle, Jose Avalos, and his family lived in the same building. Another uncle, Nicholas Hurtado, lived across the street with MS's aunt, Rosa. On October 16, 2008, at approximately 6 p.m., Uncle Nicholas called MS and asked her to come over to help him set up his iPod. MS went out the front door. It was still sunny outside. While standing on her front porch, she saw defendant across the street, masturbating in the gangway by her aunt and uncle's house. She had never seen him before. He was wearing a black spaghetti strap undershirt and black basketball shorts that were pulled down to his mid-thigh. She could not remember what color shoes defendant wore or whether defendant had facial hair or tattoos. MS also saw a girl walking in front of her uncle's house across the street. MS had never seen the girl before. The "suspicious" girl kept walking, looking back at defendant, and looked worried. MS focused her attention on the girl. When MS looked back to where defendant had been, he was gone. MS did not call out to her uncle or call the police. She waited a few minutes on her porch, "in shock."

¶ 7 MS then went across the street to her Uncle Nicholas's house. She walked to the rear door because her aunt did not like people to use the front door. The rear entrance to her uncle's house had two small stairwells. One led up to the rear door, and the other went down to the basement. MS went up the stairs and, as she knocked on the rear door, she saw defendant hidden at the bottom of the steps to the basement. She was approximately five feet away from defendant, who was still masturbating. In a "calm voice," she told defendant he was not supposed to be there and he nodded his head with a smirk. MS knocked harder on the door but did not scream for help because she was in shock. She did not run because she would have had to run past him. Defendant then came up the stairs and grabbed MS's left wrist; his grip was hard and painful. MS kept pushing him away, but was unsuccessful. She was unable to pull herself away from defendant. As defendant held her by the wrist, he pushed MS against the wall and, with his right hand, pulled down her sweat pants and underwear "[r]ight beneath the pubic hair." MS testified "I felt his hand on my vagina." She stated that "[b]asically everything" was exposed.

¶ 8 As defendant was restraining her, MS stated she was scared and panicking. She may or may not have screamed. MS heard the locks unlocking on the rear door. Defendant then ran out of the stairwell toward the front of the house. When Uncle Nicholas opened the door, defendant was gone. MS pointed toward where he had run. Uncle Nicholas ran, and MS followed him, to the end of the gangway. MS then saw her Uncle Jose get in his van and chase defendant down the street. Uncle Nicholas ran back down the gangway and MS went inside the house. Family members called the police and they arrived in a few minutes.

¶ 9 The police and MS went into the alley behind Uncle Nicholas's house, where there was an unfamiliar car parked. MS testified that she told the police that she saw defendant masturbating and that he had rubbed her vagina with his hand. At trial, she testified that he did not insert his fingers in her vagina.

¶ 10 MS went to the police station with her mother and identified defendant in a lineup. She testified that the shirt defendant was wearing during the attack was different than the one he was wearing during the lineup. MS denied telling the police that defendant had been wearing white shoes.

¶ 11 B. Nicholas Hurtado

¶ 12 MS's uncle, Nicholas Hurtado testified that he lived with his wife, Rosa, and their baby daughter, across the street from MS. MS came to visit them almost every day and would always use the back door, where there was one stairwell going up to the back door and another going down to the basement.

¶ 13 On October 16, 2008, at approximately 6 p.m., Nicholas was home. Rosa had just had foot surgery and was unable to move around easily. Nicholas had called MS and asked her to come over to his house to help him with his iPod. After a few minutes, he heard a "pretty loud" knock at the back door. He heard a series of knocks. It took him a few seconds to get to the back door and unlock the top and bottom locks. He did not hear voices or screams. As he opened the back door, he found MS crying loudly and pointing down the stairs into the gangway. He tried to calm her down. After 10 to15 seconds, she was still crying loudly but told him that a man tried to grab her and that she did not know who the man was. Nicholas ran to the front of the house and MS followed. He saw a man, wearing black, running a half block down the street but he was unable to see the man's face. Nicholas also saw his brother-in-law, Jose Avalos, run and jump into his van and follow in the same direction the man in black was running. Nicholas went back to get his shoes and went into the alley but did not find the man. He did see an unfamiliar car parked by the neighbor's garage. The police then arrived in less than 10 minutes.

¶ 14 C. Jose Avalos

¶ 15 Jose Avalos testified that on October 16, 2008, at approximately 6:15 p.m., he looked out his living room window. He saw a man across the street coming out of the gangway of his sister's house. The man was clean shaven and was wearing a sleeveless black shirt and underwear that was "like shorts like boxers." Jose identified defendant in court as that individual. Jose testified that he came out of his house onto the porch and saw his niece and brother-in-law Nicholas coming out of the gangway. His niece was crying. When Jose saw defendant running, he knew defendant had done something wrong, so Jose got into his car and chased defendant down the street.

¶ 16 Jose drove between 10 and 20 miles an hour down several streets following defendant who was approximately two car lengths away. When they came to a one-way street, Jose did not want to drive down it, so he parked his car and started chasing defendant on foot. At that point, he was no more than 10 feet from defendant. Defendant ran into a gangway, turned around, faced Jose, and said, "I'm sorry. I'm sorry." Jose had a clear view of defendant's face. Defendant then turned around and ran down an alley. He eventually ran into another gangway and Jose lost him.

¶ 17 Jose returned to his car and drove back home. He then left again and drove around trying to find defendant, but was unsuccessful. Jose spoke to the police at the scene. Later that same evening, he was contacted by the police. The detectives picked up Jose, his sister Martha, and his niece MS. Jose viewed a lineup at 12:40 a.m. on October 17, 2008 and identified defendant.

¶ 18 D. Officer David Mullany

¶ 19 Chicago police officer David Mullany testified that, on October 16, 2008, he was working with a partner in plain clothes in an unmarked car. At around 6:15 p.m., they received a report of a criminal sexual assault in the 6100 block of School Street. The call included a description of the offender as being a male Hispanic, 5 feet 10 inches to 5 feet 11 inches tall, 190 pounds, wearing a black sleeveless shirt and black shorts. They toured the area on foot for about an hour.

¶ 20 At around 8:30 p.m., the officers were parked on School Street. Sergeant Mullins was in a marked car directly to their left. A purple van pulled up and the back door opened. A male Hispanic, about 5 feet 10 inches to 5 feet 11 inches tall, wearing black shorts and a black shirt got out of the van. He fit the description of the offender heard on the flash message. Officer Mullany made an in-court identification of defendant as that man. As the officers approached, defendant told them that his car was parked in the alley. Officer Mullany testified that they were looking for an Alex Lopez. They asked defendant his name and arrested him after he told them his name was Alex Lopez. The purple van had left immediately after defendant exited and the officers did not get a good look at the driver.

¶ 21 E. Detective Emiliano Leal

¶ 22 Detective Emiliano Leal testified that, during the evening hours of October 16, 2008, he responded to a call. When he arrived at the scene, at least six officers were there. They canvassed the area and a description of the offender was broadcast over the radio. There was a Mitsubishi vehicle parked in the alley that they suspected belonged to the offender. The first thing Detective Leal observed was that there was clothing on the front seat of the car including a pair of pants. There was also a shirt, defendant's wallet, cell phone, and some citations. The police were able to determine that the car was registered to defendant's wife and that defendant was in possession of the car that night.

¶ 23 Detective Leal spoke to MS, who was physically shaking. She appeared to have been crying and the tone of her voice was not clear or even. MS told Detective Leal that she screamed immediately after defendant pulled down her pants and underwear, that defendant "grabbed her crotch" through her clothing, and that at least part of defendant's hand and fingers were inside the waistband of her underwear.

¶ 24 He also spoke to Jose Avalos, who retraced the steps he had taken when chasing the offender. Detective Leal remained on the scene for approximately 20 minutes. He heard over the air that officers had placed someone in custody at 8:31 p.m.

¶ 25 Detective Leal conducted a physical lineup at which both MS and Jose identified defendant as the offender. Detective Leal had defendant wear a jacket because he was the only one wearing a black shirt, but he did not include that fact in his report. He testified that the participants were seated to remove some of the disparities in height and that he had them roll up their pants and put their hands on top of their knees to hide the fact that their pants were rolled up. Defendant was 31 years old at the time and definitely older than some of the participants in the lineup.

¶ 26 On cross examination, the court refused to permit defense counsel to refresh Detective Leal's recollection regarding the ages of the participants in the lineup. The court stated that a party could not refresh a witness's recollection on cross-examination. The court refused to allow defense counsel to be heard at a sidebar and stated, "That's just not the right procedure. You can impeach him." The court also would not allow defense counsel to ask leading questions about what Jose had told Detective Leal because Jose had not yet testified.

¶ 27 II. Defense Case

¶ 28 A. Officer Ruiz Oquendo

¶ 29 The defense called Officer Ruiz Oquendo as its first witness. She testified that she spoke to MS in the gangway going up the stairs of her uncle's residence. Also present was MS's uncle, aunt, and mother. Officer Oquendo took notes but did not generate a report at that point; she did eventually generate a report. She could not recall whether MS told her that she saw the offender masturbating. Her report did not indicate that MS saw the offender masturbating. Officer Oquendo testified that MS "may or may not have said it." Officer Oquendo stated she was responsible for the preliminary report but there were other people interviewing MS as Officer Oquendo was gathering all the other information. Officer Oquendo testified that her report indicated that MS told her the offender "attempted" to pull down her pants, but that did not mean the offender had not completed the task. She used the word "attempt" because she did not know if the offender got MS's pants down.

¶ 30 On cross examination, Officer Oquendo also testified that MS was quite upset, crying, and was telling her "a lot of things out of order, not in consecutive order as to how they occurred."

¶ 31 B. Zeinab Mohamed

¶ 32 Defendant presented the testimony of his wife, Zeinab Mohamed. On October 16, 2008, defendant drove her to work in her Mitsubishi Gallant. He was wearing long black pants, a long black sweater, a black T-shirt, and glasses. She testified he was not wearing black shorts. Defendant dropped her off at work at 3:25 and was going to pick her up eight hours later. He never did.

¶ 33 C. Victor Lopez

¶ 34 Defendant's father, Victor Lopez, testified next. On October 16, 2008, he was alone in his house, which is on the north side of Chicago. Defendant called him at 4:30 p.m. After the conversation, defendant's father stayed home. He testified that his son has always worn glasses.

¶ 35 D. Ibrahim Almirah

¶ 36 Ibrahim Almirah testified that, on October 16, 2008, he was working in telemarketing at the Al Furquan Foundation in Addison and defendant worked in the warehouse. On that day, defendant called Almirah twice at work. After the second telephone call, Almirah left work at 7 p.m. to pick up defendant in Chicago. He took the gray Ford work van and called defendant for directions on the way.

¶ 37 He arrived 30 to 40 minutes later at a trucking school where defendant had asked him to come. Defendant was wearing a black jacket and dark shorts, as well as the glasses he always wore. Defendant directed Almirah to his car located in an alley. Almirah saw two police cars; one marked and one unmarked. Almirah testified that defendant exited the van, walked toward the police car and leaned toward the window. Almirah stated that he went to park the van because somebody was honking behind him. He stated that he got out of the van but left when he saw the police putting handcuffs on defendant.

¶ 38 On cross-examination, Almirah stated that he had not arranged to meet defendant at the Dog Stop restaurant in the area. He denied telling the police that such a meeting had been arranged. Almirah talked to defendant about what had happened after he picked him up. Almirah never contacted the State's Attorney's office and testified that he did not know there was any need for that. He stated, "Why would I contact anyone?"

¶ 39 E. Alex Lopez

¶ 40 Defendant, Alex Lopez, testified in his own behalf. He said that on October 16, 2008, he left home at 3:30 p.m. in his wife's Mitsubishi Gallant to take her to work in Warrenville. He dropped her off at about 4 p.m. and went back home where he changed into long black gym shorts, a black T-shirt with a pocket, a black zip-up sweater and black shoes. He testified that he wears glasses for his astigmatism and cannot see without them.

¶ 41 At 4:30 p.m., defendant called his father and drove toward his father's house on the north side of Chicago. At 5:15 p.m., as he was driving east on Belmont Avenue in rush-hour traffic, a minivan started following him. The minivan pulled next to defendant at a stop light and the driver started making hand gestures. Defendant believed that the driver was flashing a gang sign and was a "gang banger." The minivan got behind defendant's car again and continued to follow him. Defendant could not remember the color of the minivan and stated it "seemed like a Ford of some kind." As defendant continued driving eastbound on Belmont Avenue, he noticed the minivan really close behind him so he decided to make a left turn heading north. He did not make the turn at an intersection, but at "a small street." Defendant noticed the minivan was still following him, so he decided to make a left turn into an alley. Again the minivan followed defendant. Defendant testified that he stopped his car, got out, and walked towards the back of his car to "see what he wanted."

¶ 42 The driver got out of the vehicle and put a "hoodie" over his head. Defendant described the man, whom he had never seen before, as being either Hispanic or Caucasian, shorter than defendant, and bald with no facial hair. Defendant asked him what he wanted. Defendant then noticed the back door slide open and realized there were more people in the minivan, so he ran through a gangway. Defendant testified that, as he ran through the gangway "Apparently somebody was *** walking towards me, I guess, and I bumped them." Defendant could not describe the person. He was wearing his glasses at the time but was not sure where he was at in the gangway at the time he bumped this person. Defendant did not say anything and was moving "pretty fast." The other person was walking. After defendant bumped into this person, he ran towards the front sidewalk and then ran down the street in an eastbound direction. He did not see anyone else on the street and he did not see anybody following him in the gangway.

¶ 43 Defendant testified that he stopped to catch his breath because he is asthmatic. He stopped on somebody's property -- "the front part of someone's property" -- but did not know what street he was on at the time. He was not familiar with this alley or these streets that he was running on. He stopped for "five to 10 minutes or so." He then realized where he was and walked a block toward the main street, Belmont Avenue. He next walked two blocks westbound on Belmont Avenue. He then started walking through alleys looking for his car.

¶ 44 He located his car and was about a block away when he noticed the front two doors of his car were open and there were people near the car and in the car. He did not know how many people there were and he did not see any police cars. Defendant was afraid to return to his car, so he went to a truck driving school on Belmont Avenue where he had taken a course in 2007. Defendant had left his cell phone in his car, along with some clothing, his wallet, and some money. A person at the school let defendant use his cell phone and defendant called his workplace. He was unable to get in touch with a particular person and called again. Ibrahim Almirah answered, the two had a conversation, and defendant then waited at the trucking school for Almirah to show up.

¶ 45 While waiting for Almirah, defendant occasionally left to check to make sure his car was still there. Then he would return to the school. Defendant testified that when he went to check on his car at no time did he see any police officers or squad cars in the area. He called Almirah "quite a few times" and Almirah also called defendant. When Almirah arrived at approximately 8 or 8:30 p.m., it was dark. Almirah drove defendant to the mouth of the ally and defendant told Almirah to leave him there. There were two police cars there. Defendant testified that he approached the passenger side of one of the cars and knocked on the window. The officer asked defendant if the car in the alley was defendant's car. Defendant said yes, the officer said "Wait a moment" and got on his radio. Plain clothes officers arrived and asked defendant for his name and how to spell it. The police arrested defendant.

¶ 46 The police took defendant to the station at Grand and Central. He participated in a lineup. Everyone in the lineup was a tall, male Hispanic. Defendant was told to pick a spot and was asked to remove his glasses and put them in his pocket. Defendant was wearing his shorts, shirt and sweater. The other participants were wearing long pants and the officer directing the lineup told everybody to roll up their pants and put their hands on their knees. Defendant denied ever wearing a sleeveless shirt that day and testified that he was wearing a shirt with short sleeves as illustrated in the Cook County jail's booking photo.

¶ 47 Defendant denied that he had ever masturbated in the gangway. He denied that he had approached or touched MS, or seen her before. Defendant bumped only one person in the gangway. He was not sure if the person he ran into in the gangway was MS. Defendant admitted running down School Street that night, but did not see a person chasing him down School Street or any of the other streets with an automobile. He denied turning around while running to say "I'm sorry. I'm sorry." Defendant denied having seen Mr. Avalos before that night.

¶ 48 Defendant stated that he was not given his Miranda rights. He testified that, after he was arrested, he spoke with Detective Leal. Defendant denied telling Detective Leal that when he reached the other side of the gangway into School Street he heard an engine start and a vehicle was following him. He denied telling the detectives that he was in the area to meet Almirah at the Dog Stop restaurant. He also denied telling Detective Leal, during any of the several conversations he had with the detective, that Almirah "was lying." Defendant did not recall being asked by Detective Leal "why in the world" he would pull into an alley if being chased by "gang bangers." Defendant denied telling Detective Leal "Gang bangers always fought in alleys and parks and not in the open."

¶ 49 Defendant admitted that, instead of calling his wife or the police to help him get his car, which was just blocks away, he called Almirah, who was at work in Addison 20 miles away. Defendant also admitted that he knew Almirah not only had to leave work while he was on shift and get a car, but also had to drive at least 50 miles back and forth to pick defendant up to get his car, which was within walking distance of where defendant was waiting.

¶ 50 III. State's Case in Rebuttal

¶ 51 In rebuttal, the State called Detective Emiliano Leal back to the stand. He testified that he had three conversations with defendant: October 16, 2008 at 9:35 p.m.; October 17, 2008 at 1:40 a.m.; and October 17, 2008 at 4:45 p.m. Detective Leal testified that defendant told him that when he got out of his car, three male Hispanics exited the other vehicle. Defendant also told the detective that he ran into the gangway to escape from them and that, while running, he bumped into a "woman." Defendant told the detective that, when he reached the other side of the gangway, he heard an engine start and a vehicle following behind him.

¶ 52 Defendant also told the detective that, on the evening in question, he was planning to meet with Ibrahim Almirah at the Dog Stop restaurant to study the Koran. He did not tell Detective Leal that he was in the area to visit his father. Defendant also told Detective Leal that gang members always fought in alleys and parks and not in the open. Detective Leal also testified that defendant told him that he was in the alley to fight. Detective Leal testified that, after defendant provided Almirah's number, the detective called him. After Detective Leal spoke to Almirah, he again spoke to defendant, and defendant told him that Almirah "was lying."

¶ 53 The jury found defendant guilty of criminal sexual abuse and unlawful restraint and not guilty of attempted criminal sexual assault. Defendant filed a posttrial motion for a new trial which the trial court denied after hearing arguments. Defendant was sentenced to four years in prison. He now appeals his conviction.

¶ 54 ANALYSIS

¶ 55 I. Trial Court's Comments

¶ 56 Defendant first argues that he was denied his right to a trial by an impartial jury as a result of the trial court's comments. He asserts that "the trial court repeatedly and forcefully castigated the defense for violating rules of evidence that did not exist." (Emphasis in original.) He also contends that "the trial court frequently sustained sua sponte objections to defense questioning on the basis of non-existent rules, and sometimes without any understandable basis." In addition to the comments on these "erroneous rulings," defendant argues that "even the trial court's otherwise legitimate rulings were frequently phrased with excessive and inappropriate hostility that biased the jury" and were "replete with manifestations of hostility" directed toward defendant and his counsel that "inappropriately revealed the court's low opinion of Mr. Lopez's defense."

¶ 57 A trial judge "must not interject opinions or comments reflecting prejudice against or favor toward any party." People v. Williams, 209 Ill. App. 3d 709, 718 (1991). "Improper comments include those which reflect disbelief in the testimony of defense witnesses, confidence in the credibility of the prosecution witnesses or an assumption of defendant's guilt. In addition, a hostile attitude toward defense counsel or remarks that defense counsel has presented his case in an improper manner may also be prejudicial and erroneous." Id. A defendant must show that comments by the trial judge were prejudicial and that he was harmed by the comments for them to constitute reversible error. Id. "Where it appears that the comments do not constitute a material factor in the conviction, or that prejudice to the defendant is not the probable result, the verdict will not be disturbed." Id. at 718-19. Thus, even improper remarks may be harmless error. Id. at 719. "[I]n each case an evaluation of the effect upon the jury of a trial court's interjections must be made in the light of the evidence, the context in which they were made and the circumstances surrounding the trial." (Internal quotation marks omitted.) Id.

¶ 58 A. Forfeiture

¶ 59 The State contends that defendant forfeited this issue by failing to object and by failing to include the issue in his posttrial motion and the only way it can be reviewed on appeal is pursuant to the plain error rule. This is a threshold determination we must make because "[t]he application of plain-error or harmless-error review *** depends on whether defendant has forfeited review of the issue." People v. Thompson, 238 Ill. 2d 598, 611 (2010). To preserve an alleged error for review, both an objection at trial and a written posttrial motion raising the issue are necessary. See People v. Enoch, 122 Ill. 2d 176, 186 (1988). Defendant concedes that he did neither. However, citing People v. Sprinkle, 27 Ill. 2d 398 (1963), defendant argues that the alleged error was not forfeited because "an objection 'would have fallen on deaf ears' or caused the defendant to further bias the jury."

¶ 60 In Sprinkle, our supreme court recognized that judicial misconduct could provide a basis for relaxing the forfeiture rule. Id.; accord People v. McLaurin,235 Ill. 2d 478, 486 (2009); see also People v. Nevitt, 135 Ill. 2d 423, 455 (1990) ("although defendant did not raise any issues concerning the conduct of the trial judge in his post-trial motion, application of the waiver rule is less rigid where the basis for the objection is the trial judge's conduct"). More recently, the Illinois Supreme Court explained:

"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.]"

People v. Thompson, 238 Ill. 2d 598, 612 (2010).

Here, the trial court's comments during its evidentiary rulings and closing argument, even if unnecessary or incorrect, were not extraordinary circumstances to justify excusing the forfeiture by defense counsel. Defendant has forfeited review of the issue.

¶ 61 B. Plain Error

¶ 62 Nonetheless, the plain-error rule bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved claims of error in specific circumstances. People v. Thompson, 238 Ill. 2d 598, 613 (2010); Ill. S. Ct. R. 615 ("Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court."). A reviewing court can consider a forfeited error where:

"(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's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Sargent, 239 Ill. 2d 166, 189 (2010).

A defendant bears the burden of persuasion under each prong of the plain-error test. People v. Lewis, 234 Ill. 2d 32, 43 (2009). Defendant now asserts that the alleged error here constitutes a clear error under both prongs.

¶ 63 i. Error

¶ 64The first step of plain-error review is to determine whether any error occurred at all. People v. Thompson, 238 Ill. 2d 598, 613 (2010). If there was no error in the first instance, there can be no plain error. See People v. Bannister, 232 Ill. 2d 52, 79 (2008).

¶ 65 The State notes that "defendant does not raise any of [his] claims as free-standing claims of error." Defendant counters that "[t]wenty-two pages of [his] initial brief organize and describe these rulings and comments, most of which the State ignores or dismisses in a conclusory fashion."

¶ 66 During the State's case-in-chief its first witness was the complainant, MS. On direct examination, MS testified that she did not call out to her uncle when she first saw the defendant masturbating. She also testified that, as she knocked on her uncle's door after seeing defendant masturbating in the stairwell, she did not scream. On cross-examination, she again stated that she did not scream when she first saw the defendant masturbating, and again testified that she was not screaming as she knocked on her uncle's door after seeing defendant masturbating in the stairwell. She also testified that she did not scream when defendant grabbed her. Defense counsel, after asking MS to describe the neighbor's backyard then returned to the issue of screaming, as follows:

"DEFENSE COUNSEL: When do you start screaming? How long ...


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