Opinion
No. 1-15-0859
12-14-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALEXANDER EDWARDS-HINTON, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County No. 13 12170 Honorable Anna H. Demacopoulos, Judge Presiding. PRESIDING JUSTICE ROCHFORD delivered the judgment of the court.
Justices Hall and Lampkin concurred in the judgment.
ORDER
¶ 1 Held: We affirmed defendant's conviction of aggravated battery of a peace officer and his seven-year sentence, finding that the trial court did not commit reversible error in its admission of evidence or in the giving of jury instructions or in sentencing defendant; and the State's remarks during closing arguments did not deprive defendant of a fair trial. ¶ 2 A jury convicted defendant-appellant, Alexander Edwards-Hinton, of aggravated battery of a peace officer and the trial court sentenced him to seven years' imprisonment. On appeal, defendant contends the trial court erred by: (1) admitting evidence that the incident occurred in a maximum security area of the prison; (2) admitting screenshots of the timestamps from the officer's cell phone camera that allegedly show when certain photographs of the officer (and his injuries) were taken; (3) failing to give particular instructions to the jury relating to self-defense and to missing evidence; and (4) considering improper factors during sentencing. Defendant also contends that the State made various improper and prejudicial comments during closing arguments. We affirm. ¶ 3 Prior to trial, defendant filed a motion in limine to preclude the admission of evidence that he was in jail for first-degree murder at the time of his altercation with the officer. During argument on the motion, the State agreed not to mention this fact, but contended that it should be allowed to show that defendant was housed in the maximum security division. The State argued that defendant was asserting that he acted in self-defense against the officer's use of unreasonable force against him, and that the evidence that defendant was housed in the maximum security division was relevant to show the reasonableness of the officer's use of force and, thus, to refute defendant's claim of self-defense. The trial court agreed with the State and allowed it to introduce evidence that the incident occurred in the maximum security division. ¶ 4 At trial, Officer Brendan Kelly testified that he has worked nine and a half years as a corrections officer at the Cook County Department of Corrections (CCDOC). The CCDOC is comprised of different divisions that are housed in different buildings and have different security classification levels. The security level is based on the "pretrial detainees' charges." On May 22, 2013, Officer Kelly was working on Tier 2F in the ninth division, a maximum security facility. As an officer in a maximum security facility, his "level of awareness [was] heightened" for his own safety. ¶ 5 At about 8:30 p.m., Officer Kelly was letting detainees out of their cells individually to get their medicines from a nurse standing at the entrance to the tier. Defendant was one of the detainees temporarily let out of his cell to get medication. After getting his medication, defendant returned to his cell. At the doorway of the cell, defendant poked Officer Kelly and told him: "You got pointy nipples." This caused Officer Kelly to drop his list of prisoners needing medication to the ground. Officer Kelly told defendant that he was going to receive a disciplinary ticket and that at "no point in time" was he to put his hands on an officer. Defendant became agitated, cursed, and asked the officer not to write him up. As Officer Kelly bent down to pick up the list of prisoners that he had dropped, defendant pushed him and told him to "get the f*** away from my door." Officer Kelly radioed an "all available," which meant that an officer was being assaulted and needed assistance. ¶ 6 Officer Kelly told defendant to "cuff up," meaning that defendant should get on the ground and lock his hands behind his head, or turn around and put his hands behind his back. Officer Kelly then stepped toward defendant, who got into a fighting stance with his hands up and hit the officer on the right side of his face in the lip/mouth area. Officer Kelly grabbed defendant and pulled him to the ground, where they struggled. Officer Kelly punched defendant once or twice so as to get him to stop resisting. Within 20 to 30 seconds after Officer Kelly radioed for assistance, Sergeant Campos ran into the cell and helped handcuff defendant. Other officers then arrived and escorted defendant off the tier. ¶ 7 Officer Kelly suffered a "bust lip," a cut to the inside of his mouth, some swelling and tooth pain. He filled out a battery report, stating that he had a bloody lip and that defendant had poked him in the chest. He also filled out a use-of-force form, stating that he sustained no injuries, because he thought that the form was asking him whether he needed to call 9-1-1 or whether he required an ambulance, and that the answer to both questions was no. Officer Kelly refused any medical treatment at the jail, but he did go to an immediate care facility two days later and received treatment. ¶ 8 Officer Kelly's work shift on the day of the incident was from 3 to 11 p.m. After returning home from work on the night of the incident, his wife took photographs on his cell phone of his injuries, which he showed to the assistant State's Attorney (ASA) on the first day of trial. Printouts of the cell phone photographs were admitted and published to the jury. ¶ 9 Officer Kelly testified that when he showed the ASA the photographs taken on his cell phone, the ASA showed him how to retrieve the timestamp data identifying when the photographs were taken. Officer Kelly identified People's exhibit numbers 6 through 9, which were admitted at trial and published to the jury, as printouts of the screenshots of the timestamp data. Those exhibits showed that the photographs of the officer's injuries were taken on May 23, 2013, at 1:14 a.m. and 1:15 a.m. ¶ 10 Sergeant Humberto Campos testified that, at about 8:30 p.m. on May 22, 2013, he was the supervisor on the second and third floor of Division 9 at the CCDOC, which was the "maximum division, super max division." He was doing some paperwork and glancing at Officer Kelly, who was opening cells for inmates to come out and receive their medication. Sergeant Campos heard Officer Kelly's radio call for "all available," meaning that he was in "distress," and needed assistance. Sergeant Campos ran to defendant's cell, where he saw defendant and Officer Kelly on the ground and he heard the officer order defendant to stop resisting and to "cuff up." Defendant was not complying with that order, and so Sergeant Campos assisted the officer in handcuffing defendant. Other officers arrived and took defendant from the tier. Afterwards, Sergeant Campos saw that the right side of Officer Kelly's face was red and that he had a bloody lip. ¶ 11 On cross examination, Sergeant Campos testified that after the incident, he filled out a report stating that Officer Kelly had redness on the right side of his face. The report did not mention a bloody lip. Sergeant Campos did not take any photographs of the officer's injuries. ¶ 12 Felicia Ogbuli, a nurse at the in-jail dispensary, testified that at about 10 p.m. on May 22, 2013, defendant came in complaining of an injury to his head. Nurse Ogbuli observed that defendant had an injury to the head and a "blood shunt to the right eye," meaning that his right eye was red. Defendant's red eye could have been caused by some trauma or simply from rubbing his eye too hard. She sent defendant to the emergency room for "further management." ¶ 13 Defendant testified on his own behalf that, at about 8:30 p.m. on May 22, 2013, he was detained in the ninth division of the CCDOC. Officer Kelly let him out of his cell to receive his medication. Prior to being let out of the cell, defendant did not have any conversation with the officer. Upon leaving his cell, though, Officer Kelly told defendant that he wanted to talk to him. Defendant did not know what the officer wanted to talk about. ¶ 14 Defendant went to get his medication, and then returned toward his cell. When he was about three feet from his cell, defendant asked Officer Kelly what he wanted to talk about, and the officer indicated that defendant had "disrespected him." Defendant denied poking the officer in the chest or commenting on his "pointy nipples." Defendant asked the officer how he had disrespected him, and the officer "got all aggressive," and said: "You know how you disrespected me." Defendant walked into his cell, followed by the officer, who shoved him from behind. The officer's aggression scared defendant, and he feared for his life. ¶ 15 Defendant turned around and asked Officer Kelly "what was he on." The officer responded: "What's that tough s*** you talking about now." Defendant backed away, while his cell mate told the officer: "Get off that, we ain't on that." Officer Kelly then "taunted" his cell mate, who told the officer to leave the cell. As Officer Kelly left the cell, he said: "I knew y'all was a bunch of b******." ¶ 16 Defendant testified that after Officer Kelly left, a prisoner in another cell called over and asked what had happened. Defendant responded that the officer had tried to provoke him into a fight. Officer Kelly then returned to defendant's cell, radioed for assistance from all available officers, and told defendant that he better have a shank to defend himself. Officer Kelly punched defendant in the face and grabbed both of defendant's shoulders. Defendant responded by grabbing the officer's shoulders. Officer Kelly swept his leg underneath defendant's legs, causing defendant to fall to the ground. The officer fell on top of defendant and began hitting him. Defendant did not hit Officer Kelly back, but instead tried to grab his hands so as to block the punches. Other officers came into the cell, began "stomping" on defendant and told him to stop resisting. Sergeant Campos told defendant to "cuff up," and the officers rolled him over on to his stomach and handcuffed his hands behind his back. The officers escorted defendant out of the cell, placed him on an elevator, and "rammed" his head into the elevator, causing him to lose consciousness for about 10 seconds. ¶ 17 Later that night, defendant saw Nurse Ogbuli in the dispensary and then went to a medical facility inside the jail. He testified that the injuries he received from Officer Kelly included swelling to his forehead, swelling under his right eye, and a blood clot in his right eye. ¶ 18 The incident between defendant and Officer Kelly was not captured on video, but two video recordings were made in its aftermath. The first, which was entered into evidence, was a five-minute recording taken by a guard responding to the distress call. It briefly depicts defendant being taken away from the tier. ¶ 19 The second video was taken by an employee of the Cook County Sheriff's Department while jail personnel were interviewing defendant about the incident shortly after it took place. The parties stipulated that the videotape was kept in the control of the Cook County Sheriff's Department. However, at the time of trial, the videotape could not be located, as "it ha[d] been lost, misplaced or destroyed." ¶ 20 During the jury instruction conference, the defense asked for a non-Pattern Jury Instruction (non-IPI instruction) that would have informed the jury that it could infer that the missing videotape would have depicted defendant's injuries. The State confirmed that it was never in possession of the videotape, and the defense made clear that it was "not alleging any bad faith or [intentional] destruction" of the videotape by the State. The trial court denied the tendered instruction. ¶ 21 The jury convicted defendant of aggravated battery of a peace officer. ¶ 22 At the sentencing hearing, the evidence showed that defendant had prior convictions for battery to a police officer, marijuana possession, and robbery. The parties stipulated that after the trial, a sheriff's deputy was assigned to transport defendant from the courthouse to the jail. As the deputy was about to search defendant prior to transport, defendant admitted that he had something in his left chest pocket. The deputy recovered pieces of glass wrapped in a tissue. The glass appeared to have been broken off from the glass door of the cell. The deputy also recovered a pen, which was considered contraband at the jail. ¶ 23 The trial court sentenced defendant to seven years' imprisonment. Defendant appeals. ¶ 24 On appeal, defendant first contends that the trial court erred by admitting testimony from Officer Kelly and Sergeant Campos that the incident occurred in a maximum security division of the prison. Defendant also contends that the court erred in admitting Officer Kelly's testimony that as a guard in the maximum security division, his awareness of his surroundings was "heightened" to ensure his personal safety. Defendant further contends that such testimony constituted improper "other-crimes evidence" because it communicated to the jury that he had committed some other offense. The admission of evidence is within the sound discretion of the trial court, and will not be reversed absent an abuse of that discretion. People v. Becker, 239 Ill. 2d 215, 234 (2010). An abuse of discretion occurs when the trial court's decision is arbitrary, fanciful or unreasonable, or when no reasonable person would agree with the trial court's position. Id. ¶ 25 Evidence of other crimes is not admissible to demonstrate a defendant's propensity to commit crime. People v. Lewis, 2015 IL App (1st) 130171, ¶ 46. "Such evidence overpersuades the jury, which might convict the defendant only because it feels he is a bad person deserving punishment." People v. Richardson, 123 Ill. 2d 322, 339 (1988). "However, other-crimes evidence is admissible if relevant for any purpose other than to show the propensity to commit crime, such as modus operandi, intent, identification, motive, or absence of mistake." Id. ¶ 26 The State argues that the testimony of Officer Kelly and Sergeant Campos did not constitute other-crimes evidence, as the witnesses never specifically identified the actual crime which caused defendant to be housed in the maximum security division. Defendant counters that the evidence that he was housed in a maximum security area was alone sufficient to allow the jury to infer that he had committed a serious crime and, thus, should not have been admitted. See e.g., Thigpen v. Thigpen, 926 F. 2d 1003, n. 26 (1991) (holding that from defendant's incarceration in a maximum-security prison, "the jury could infer either that he had committed a serious crime *** or that he had been placed there because the security of a maximum-security prison was necessary to prevent his escape or to protect other prisoners"). ¶ 27 Even if we accept defendant's argument that the testimony of Officer Kelly and Sergeant Campos must be viewed as "other-crimes" evidence, the trial court did not abuse its discretion by admitting it at trial. As stated, evidence of prior bad acts is admissible if relevant for any purpose other than to demonstrate defendant's propensity to commit crime. Id. Evidence is considered "relevant" if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence. People v. Illgren, 145 Ill. 2d 353, 365-66 (1991). Defendant here was charged with aggravated battery of a peace officer, and his theory of self-defense was based on a claim of unreasonable and excessive force used by Officer Kelly. The testimony that the incident occurred in a maximum security division, and that Officer Kelly had a "heightened" awareness of his surroundings in that division so as to ensure his own personal safety, was relevant to explain the reasonableness of his use of force when responding to defendant's aggressiveness. As such, the testimony in question served to rebut defendant's claim of self-defense and, therefore, was relevant and admissible. ¶ 28 Defendant argues, though, that "[e]ven assuming that the security level had some arguable relevance, any minimal probative value was far outweighed by the danger of unfair prejudice." See id. at 365 (the trial court may exclude other-crimes evidence if its prejudicial effect substantially outweighs its probative value). ¶ 29 Evidence is unfairly prejudicial when it has "an undue tendency to suggest decision on an improper basis, commonly an emotional one, such as sympathy, hatred, contempt, or horror." People v. Edgeston, 157 Ill. 2d 201, 237 (1993). Here, the evidence that defendant was housed in the maximum security division was not unfairly prejudicial, where the testimony of Officer Kelly and Sergeant Campos on this issue was brief and did not identify the other crime with which he was charged, nor did they testify to any specific behavior of defendant other than the behavior leading to the charges against him in the instant case. Given the probative value of the testimony of Officer Kelly and Sergeant Campos in refuting defendant's self-defense claim, coupled with its lack of any specific detail of his other crime that would have generated an emotional response from the jury affecting its decision, we cannot say that the prejudicial effect of the testimony substantially outweighed its probative value. ¶ 30 Next, defendant argues that the trial court erred by admitting the screenshots of the timestamps from Officer Kelly's cell phone camera that allegedly showed when the photographs of the officer and his injuries were taken. Defendant objected to the admission of the screenshots on the basis that the timestamps they depicted were hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015). A hearsay statement may be either oral or written. Ill. R. Evid. 801(a) (eff. Oct. 15, 2015). ¶ 31 The trial court found that the screenshots were essentially photographs of what was on Officer Kelly's cell phone, and that they were admissible because the testimony of Officer Kelly established the foundational requirement that the photographs fairly and accurately represented the subject matter depicted. See People v. Martinez, 371 Ill. App. 3d 363, 380 (2007) (stating foundational requirements for admission of photographs). ¶ 32 However, defendant did not object on the basis that the screenshots were not accurate depictions of what was on the phone. Rather, his objection was that what was depicted on the phone—the timestamps—was hearsay. The trial court erred by applying the foundational rules for the admission of photographs, rather than the rules governing hearsay. ¶ 33 The State argues, though, that we may affirm the trial court's judgment on any basis supported by the record, even if the trial court used erroneous reasoning to reach a correct result. See People v. Bartelt, 241 Ill. 2d 217, 239 (2011). The State contends we should affirm because the timestamps represented the self-generated records of Officer Kelly's cell phone camera, and were not hearsay. The State cites in support People v. Holowko, 109 Ill. 2d 187 (1985). In Holowko, our supreme court held that self-generated data, which are the results of a computer's automatic internal operations, are not hearsay statements from out-of-court declarants (id. at 191-93), and are admissible where there is foundation proof "of the method of the recording of the information and the proper functioning of the device by which it was effected." Id. at 193. ¶ 34 No such foundation proof was offered here, where there was no testimony at trial that the timestamps were automatically self-generated by Officer Kelly's cell phone and where Officer Kelly testified that he did not "really know the technical aspects of the cell phone." ¶ 35 The State also argues that the timestamps were not hearsay as they were not offered for the truth of the matter asserted. We disagree. The State introduced the timestamps to prove the truth of what they purportedly asserted, which was the date and time that the photographs of the officer's injuries were taken. ¶ 36 The error here was harmless, though. The timestamp evidence was used to show that the photographs of Officer Kelly's injuries were taken after he left work at 11 p.m. on May 22, 2013 and, thus, that they depicted the injuries caused by defendant and did not depict injuries incurred on some previous date. The timestamp evidence was cumulative to Officer Kelly's testimony that his wife took the cell phone photographs after he left work and arrived home after 11 p.m. on May 22, 2013, and that they accurately depicted the injuries inflicted on him by defendant. See People v. Colon, 162 Ill. 2d 23, 34 (1994) (testimony that is merely cumulative constitutes harmless error). ¶ 37 The error was also harmless given all the other evidence against defendant. Officer Kelly testified to defendant's unprovoked physical attack against him and to defendant's failure to obey lawful commands by the officer to "cuff up." Officer Kelly's testimony was corroborated by Sergeant Campos, who heard Officer Kelly's distress call, and observed defendant fighting the officer and failing to obey the orders to "cuff up" and stop resisting. Officer Kelly testified to the injuries he received, which was corroborated by Sergeant Campos and by the cell phone photographs taken by Officer Kelly's wife. On all this evidence, the State has shown harmless error by proving, beyond a reasonable doubt, that the verdict would have been the same absent the timestamp evidence. People v. Middleton, 2018 IL App (1st) 152040, ¶ 36 (in harmless error analysis, the State must prove beyond a reasonable doubt that the verdict would have been the same even absent the error). ¶ 38 Defendant contends that the error was exacerbated, though, when the ASA referenced the timestamp data during closing arguments by stating:
"How do we know the pictures were taken that same evening? Because of the details, the data that he didn't even know existed on the phone. *** The photographs were taken. He took them. You have proof that he took them and when he took them. Look at that. It's there."Defendant forfeited review by failing to object to the ASA's closing argument. People v. Enoch, 122 Ill. 2d 176, 186 (1988). On the merits, the comments were isolated and brief, and did not constitute a material factor in defendant's conviction given all the evidence against him. Accordingly, we find no cause for reversal. See People v. Woods, 2011 IL App (1st) 091959, ¶ 42 (improper comments by the ASA during closing argument will not warrant reversal unless they were a material factor in defendant's conviction, and a significant factor is whether the comments were isolated and brief within the context of a lengthy closing argument). ¶ 39 Next, defendant contends that the trial court committed reversible error by admitting the testimony of Officer Kelly regarding how the ASA helped him to access the timestamps. Defendant contends that the officer's testimony, that the ASA was the person who found and accessed the timestamps, essentially sent a message to the jurors that the State was vouching for Officer Kelly and putting its "stamp of approval" on his testimony regarding the time that the cell phone photographs were taken. Defendant contends that, during closing arguments, the ASA further injected the State's stamp of approval by referencing how he (the ASA) helped Officer Kelly to retrieve the timestamp data. Defendant forfeited review by failing to object to much of the testimony and to the closing arguments. Enoch, 122 Ill. 2d at 186. ¶ 40 Even addressing the issue on the merits, we find no cause for reversal. In support of his contention, that the testimony of Officer Kelly and the ASA's closing arguments were improper, defendant cites People v. Williams, 2015 IL App (1st) 122745, which held that, during closing arguments, prosecutors are not allowed to vouch for the credibility of a government witness nor are they permitted to use the credibility of the office of the Cook County State's Attorney to bolster the testimony of a witness. Id. ¶ 12. The Williams court held that the prosecutor there had improperly vouched for the witness's credibility by stating: "When a gang member comes before us and is charged with an offense, we don't just take everything he says for truth immediately, we check it out." Id. ¶¶ 17-19. The Williams court found the prosecutor's comment was improper because it informed the jury that the witness's credibility had already been assessed before he took the stand and it urged the jury to believe the witness over the defendant because of the government's verification of the witness's version of events. Id. ¶ 17. The prosecutor's comment also was in error as it informed the jury that it could believe the witness because of some independent investigation into the veracity of the witness's story that was not based on record evidence; the Williams court noted:
"There is some implied guarantee of truthfulness derived from the prosecutor's statements that arises from something other than record evidence. The prosecutor made an impermissible implication that he knew something that the jury did not, but his implication had no evidentiary basis." Id. ¶ 18.¶ 41 Williams is inapposite. Officer Kelly's testimony during direct and redirect examination, and the ASA's closing argument, did not reference any outside investigation of the officer's veracity or any other evidence that was not based on the record; nor did it inform the jury that the State was otherwise vouching for his credibility. Accordingly, we find no reversible error. ¶ 42 Next, defendant contends that the trial court erred by failing to give the following non-IPI instruction regarding the Sheriff Department's loss or destruction of the videotaped interview of defendant:
"If you find that the State has allowed to be destroyed or lost any evidence whose content or quality are at issue, you may infer that the true fact of the lost or destroyed evidence is against the State's interest."¶ 43 Defendant contends that the importance of the missing videotape is that it depicted the injuries to his head and eye which were inflicted on him by Officer Kelly, and that the proposed non-IPI instruction would have informed the jury that it could infer from the fact that the State had lost the videotape that it would have depicted those injuries. ¶ 44 A non-IPI instruction should only be used if the pattern instructions for criminal cases do not contain an accurate instruction and if the tendered non-IPI instruction is simple, brief, impartial, and free from argument. Id. at 367. The decision of whether to give a non-IPI instruction is within the sound discretion of the trial court. Id. ¶ 45 The trial court here determined that any audio statements defendant made in the missing videotape would have been hearsay (see Ill. R. Evid. 801(c) defining hearsay) and, thus, inadmissible, and that the video of his face depicting his injuries would have been cumulative to the other videotape of defendant and to Nurse Ogbuli's testimony regarding his injuries and, thus, would not have been admitted at trial. See People v. Tolliver, 347 Ill. App. 3d 203, 228 (2004) (the admission of cumulative evidence is within the discretion of the trial court). As neither the audio nor video portions of the missing videotape would have been admitted, the trial court determined that the jury need not be given any instructions on it. Defendant has not shown that the trial court erred in finding that the missing videotape was cumulative to other evidence and would not have been admitted at trial. We find that the trial court committed no abuse of discretion in denying plaintiff's proposed non-IPI instruction on the missing videotape, where the videotape would not have been admitted into evidence even if it had not been lost or destroyed. ¶ 46 Next, defendant contends that the trial court erred by refusing to give a non-IPI instruction informing the jury that the officer's use of excessive force invoked defendant's right to self-defense. Defendant cites in support People v. Sims, 374 Ill. App. 3d 427 (2007), which held that a person being arrested has no right to use force to resist an arrest by a known officer, but that this rule is qualified in that it does not apply to a situation in which an officer uses excessive force. Id. at 432. The trial court denied the defendant's non-IPI instruction on excessive force and, instead, gave the jury IPI Criminal No. 24-25.06 (4th ed. 2000) (hereinafter IPI Criminal 4th), which states that "[a] person is justified in the use of force when and to the extent that he reasonably believes that such conduct is necessary to defend himself against the imminent use of unlawful force." Id. ¶ 47 Initially, we note that defendant has failed to include the proposed non-IPI instruction on excessive force in the record on appeal. As the appellant, defendant bears the burden of supplying a complete record on appeal, and any omissions arising from an incomplete record will be resolved against him. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984). ¶ 48 Even if the non-IPI instruction on excessive force had been included in the record on appeal, we would affirm the trial court's decision not to give it to the jury. In People v. Fetter, 227 Ill. App. 3d 1003 (1992), the defendant there made a similar argument that the court should give a non-IPI instruction to the jury, informing it that the use of excessive force by a police officer invokes the right of self-defense. Id. at 1011. The appellate court disagreed, holding that IPI Criminal 4th No. 24-25.06 adequately covers the subject of defendant's right to self-defense against a police officer. Id. In accordance with Fetter, we hold that the trial court committed no abuse of discretion in giving IPI Criminal 4th No. 24-25.06 and in denying defendant's proposed non-IPI instruction on excessive force. ¶ 49 Next, defendant contends that the State made various improper remarks during closing arguments. Defendant forfeited review of those comments by failing to object to them at trial. Enoch, 122 Ill. 2d at 186. Even choosing to address the issue on the merits, we find no reversible error. ¶ 50 A prosecutor is allowed wide latitude during closing arguments, and may comment on the evidence presented at trial, as well as any fair, reasonable inferences therefrom. People v. Cook, 2018 IL App (1st) 142134, ¶ 61. On review, we consider challenged remarks in the context of the entire record as a whole, in particular the closing arguments of both sides. People v. Williams, 313 Ill. App. 3d 849, 863 (2000). Reversal is warranted only if the prosecutor's improper remarks caused substantial prejudice to defendant, that is, if the remarks constituted a material factor in defendant's conviction. People v. Wheeler, 226 Ill. 2d 92, 123 (2007). The reviewing court applies an abuse of discretion analysis to determinations about the propriety of a prosecutor's remarks during argument, but reviews de novo the legal issue of whether any improper remarks by the prosecutor were so egregious as to warrant a new trial. Cook, 2018 IL App (1st) 142134, ¶ 64; People v. Davis, 2018 IL App (1st) 152413, ¶ 68. ¶ 51 First, defendant argues that the ASA improperly told the jury to consider its "common sense" when considering whether he had engaged in self-defense. The ASA committed no error, as our supreme court has held that "prosecutors may discuss subjects of common experience or common sense in closing argument." People v. Runge, 234 Ill. 2d 68, 146 (2009). ¶ 52 Defendant next contends that the ASA misstated the evidence by arguing that self-defense did not apply here because defendant presented no testimony that Officer Kelly engaged in any unlawful force or that defendant had ever fought back against the officer. ¶ 53 The ASA's comment was in error. Defendant testified that Officer Kelly shoved him, punched him, and grabbed him for no reason; that he defended himself by grabbing Officer Kelly's shoulders; and that the two of them went to the ground locked in a struggle. If believed, defendant's testimony established all six elements of self-defense: that Officer Kelly was threatening the imminent use of unlawful, harmful force, and defendant, who was not the aggressor, reasonably believed that the force he used was necessary to protect himself. See People v. Goosens, 262 Ill. App. 3d 722, 727 (1994) (stating the elements of self-defense). Thus, the ASA's argument, that defendant never presented any evidence of self-defense, was an inaccurate reflection of his testimony. However, we find no cause for reversal, where the State's comment was not a material factor in his conviction, given all the other evidence against him as discussed earlier in this order. Also, the jury was properly instructed on self-defense, that the attorneys' arguments were not evidence and that any statement or argument not based on the evidence must be disregarded, that the law that applied to the case was contained within the court's instructions, and that the jury must follow those instructions. These instructions militate against a finding of prejudicial error in this case. See People v. Sangster, 2014 IL App (1st) 113457, ¶ 126. ¶ 54 Next, defendant argues that the ASA improperly disparaged defense counsel by arguing to the jury that: (1) the defense's claim that Officer Kelly manipulated the timestamp data "insults your intelligence;" (2) the theory of self-defense constituted "disrespect for the law;" (3) defense counsel's reference to the missing videotape was a "blindfold" designed to keep the jury from using its knowledge of the facts to convict defendant of aggravated battery; and (4) the defense was an "insult." The ASA's remarks constituted comments on the credibility of the defense theory and were not in error. See e.g., People v. Kirchner, 194 Ill. 2d 502, 550-51 (2000) (prosecutor's arguments attributing "misdirection" to "defendant through his counsel," and contending that defendant's argument was an attempt to "dupe" the jury, were directed against the credibility of the defendant and his theory of defense and did not constitute reversible error); People v. Garcia, 407 Ill. App. 3d 195, 206 (2011) (the prosecutor's argument describing defendant's self-defense theory as "ridiculous" and "insulting," and referencing any second degree murder conviction as "a travesty" of justice, were within the bounds of proper argument); People v. Ligon, 365 Ill. App. 3d 109, 124-25 (2006) (the prosecutor's argument describing the defense as "ridiculous," "sad," and "pathetic" were proper comments on defendant's credibility and his defense theory rather than an impermissible attack on defense counsel). ¶ 55 Next, defendant contends that the ASA improperly derided the defense theory during rebuttal argument as a "conspiracy." We find no reversible error. During his closing argument, defense counsel attacked Officer Kelly's credibility and argued that the State's witnesses were engaged in a "cover-up" of the officer's unprovoked attack against defendant. In rebuttal, the ASA stated:
"Conspiracy theory. That's what it is. Cover-up is a little bit easier to say than conspiracy. But that's what it is. It is easy to say Officer Kelly was lying and so was Campos. No. You have to take this logically to where it is supposed to go. If this is actually a conspiracy, not only is Officer Kelly in on it, but Officer Campos is in on it. Every officer that came into that cell is in on it. Every officer that was in that video is in on it. Nurse Ogbuli, sure, she's in on it. Otherwise, those injuries would have been documented, wouldn't they? How about Officer Kelly's wife? She's in on it. Maybe his smart phone company. Maybe they are in on it too because somehow the details of those photos are going to be there for you to see and it is going to show you when those photographs were taken."¶ 56 The State's comments about a conspiracy were a direct response to the defense's attack on the credibility of the State's witnesses, and to the defense's characterization of the State's witnesses as engaging in a cover-up, and did not constitute reversible error. See People v. Temple, 2014 IL App (1st) 111653, ¶ 74. ¶ 57 Defendant argues, though, that the ASA's reference to Officer Kelly's wife and to the smart phone company was in error, where there was no evidence presented at trial regarding either of them. See People v. McGee, 2015 IL App (1st) 130367, ¶ 56 ("it is improper for a prosecutor to argue inferences or facts not based upon the evidence in the record"). Any error by the State in its brief, isolated reference to the officer's wife and to his phone company was harmless where it did not constitute a material factor in defendant's conviction. See Woods, 2011 IL App (1st) 091959, ¶ 42. ¶ 58 Next, defendant contends that, during opening statements and closing arguments, the prosecutor improperly emphasized that the incident took place in a maximum security division. We find no reversible error. As discussed, the trial court entered an in limine order allowing the State to elicit evidence that the incident occurred in the maximum security division so as to show the reasonableness of the officer's use of force. ¶ 59 In accordance with the in limine ruling, the ASA stated during opening statements:
"You're going to hear that there are low-level divisions for misdemeanor and other cases, there is also maximum level divisions. Division nine is a maximum level division. That's where this defendant was."¶ 60 After recounting Officer Kelly's version of how defendant poked him, became confrontational, and got in an aggressive stance, the ASA stated:
"At this point, the defendant was near or in his cell, and Officer Kelly did exactly what he is trained to do. He called for back-up. He called for all available officers. Why, because this is the Cook County Department of Corrections, because this was division nine, and because this was a situation that could not get out of control."¶ 61 These comments accurately apprised the jury of what the State expected the evidence to prove (in accordance with the in limine ruling) and did not constitute reversible error. See People v. Kliner, 185 Ill. 2d 81, 127 (1998) ("An opening statement may include a discussion of the expected evidence and reasonable inferences from the evidence."). ¶ 62 During closing arguments, the ASA stated that Officer Kelly worked as an officer in the Cook County jail and stated:
"Not only did Officer Brendan Kelly work at Cook County jail, he worked in division nine. Division nine is a maximum security division of Cook County jail. That's a division for those charged with the most serious offenses."After alluding to defendant's version that the officer tried to provoke a fight with him and his cellmate, the ASA stated: "Why would Officer Kelly put himself in the Cook County Department of Corrections division nine in a two-on-one situation? Because it is not the truth. That's not what happened." The ASA criticized defendant's version of the incident as incredible, and stated: "[Officer Kelly] did exactly what he is allowed to do, what he should do in the Cook County Department of Corrections division nine." ¶ 63 The ASA's comments regarding the location of the incident in the maximum security division were brief and did not place an undue emphasis thereon. Further, the ASA's comments were an accurate reflection of the evidence presented at trial pursuant to the in limine order, and were in accordance with that order as they were made to highlight that the force used by Officer Kelly was lawful. We find no reversible error. ¶ 64 Next, defendant argues for reversal based on cumulative error. We find no cause for reversal, as the errors considered together did not have the cumulative effect of denying defendant a fair trial. People v. Speight, 153 Ill. 2d 365, 376 (1992). ¶ 65 Next, defendant contends he was denied a fair sentencing hearing because the trial court improperly relied on conduct that was inherent in the offense, and on a prior nonviolent conviction, in sentencing him. The imposition of a sentence is generally a matter of judicial discretion; however, the question of whether the court relied on an improper factor in imposing the sentence is a question of law that is reviewed de novo. People v. Bowen, 2015 IL App (1st) 132046, ¶ 49. Defendant bears the burden to establish that the sentence was based on improper considerations, and we will not reverse a sentence imposed by the trial court unless it is clearly evident that the sentence was improperly imposed. Id. ¶ 66 First, defendant contends that the trial court erred when it stated that it was "taking into consideration" the fact that he committed bodily harm. Defendant argues that bodily harm is a factor implicit in the offense of aggravated battery of a peace officer and, as such, could not be considered as an aggravating factor. See People v. Morris, 2014 IL App (1st) 130512, ¶ 51 ("Generally, a circuit court may not use a factor implicit in the offense for which the defendant was convicted as an aggravating factor at sentencing for that offense."). The State responds that the rule against considering factors implicit in the offense is not absolute. Our supreme court has held:
"While the classification of a crime determines the sentencing range, the severity of the sentence depends upon the degree of harm caused to the victim and as such may be considered as an aggravating factor in determining the exact length of a particular sentence, even in cases where serious bodily harm is arguably implicit in the offense for which a defendant is convicted." (Emphasis in original.) People v. Saldivar, 113 Ill. 2d 256, 269 (1986).¶ 67 In determining the degree of harm caused by defendant, the trial court may consider the force employed, the physical manner in which the victim's injuries were brought about, and the extent of the victim's injuries. Id. at 271; People v. Rader, 272 Ill. App. 3d 796, 808 (1995). ¶ 68 Here, though, the trial court's finding in aggravation was not directed at the degree of harm caused by defendant, where the court never discussed the amount or manner of force employed by defendant or the extent of the officer's resulting injuries. Rather, the court focused only on the end result that the officer suffered some bodily harm from defendant's attack on him, a factor that is implicit in the offense of aggravated battery of a peace officer and that should not have been considered in aggravation. ¶ 69 However, in determining whether the sentence imposed by the court was proper, we will not consider the court's statements in isolation but instead will consider the entire record. People v. Walker, 2012 IL App (1st) 083655, ¶ 30. Further, when the trial court has considered an improper sentencing factor, resentencing is not necessary if the weight given to the factor did not lead to a greater sentence. Id. ¶ 70 Viewing the record as a whole, we find that the trial court considered a number of factors, in addition to the factor of bodily harm, as supporting a seven-year sentence, including defendant's prior offense of battery to a police officer, defendant's prior robbery offense, and defendant's prior offense of marijuana possession. The trial court also stated:
"I do take into strong consideration in aggravation the stipulation of the events that occurred on the day that the verdict was read in this court, [specifically] that the defendant was found to be in possession of shards of glass that were retrieved from a broken glass pane in his cell here in the Markham courthouse. ***
He has a history of hurting individuals in a place of authority. He's got a prior supervision for a battery to a police officer. This particular case involved a correctional officer. And after that verdict was rendered, he has glass in his possession on his way back to the county jail."¶ 71 We find no cause for resentencing where the record as a whole indicates that the court would have sentenced defendant to the same term even in the absence of the improperly considered evidence. ¶ 72 Next, defendant contends that the trial court erred during the sentencing hearing by determining that his prior battery conviction against a police officer demonstrated his history of hurting individuals in a place of authority. Defendant forfeited review by failing to raise the issue in his post-sentencing motion. People v. McDade, 345 Ill. App. 3d 912, 914 (2004). Addressing the issue on the merits, we note that the criminal history reports found in the record state that defendant has a prior conviction for battery involving unlawful "physical contact" with a police officer. Defendant's prior battery conviction, coupled with his conviction here for aggravated battery of a peace officer, supports the trial court's finding that he has a history of hurting individuals in a place of authority. The court committed no sentencing error. ¶ 73 For all the foregoing reasons, we affirm the circuit court. ¶ 74 Affirmed.
In adherence with the requirements of Illinois Supreme Court Rule 352(a)(eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order stating with specificity why no substantial question is presented. --------