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THIRD DIVISION
May 5, 2004

Defendant Pierre James was tried in a joint jury trial with codefendant WillieBishop and was convicted of first degree murder and sentenced to 40 years'imprisonment.⁽¹⁾ On appeal, defendant contends: (1) the trial court erred in denying hisrequest for a continuance to secure two alibi witnesses as well as an additional witnesswho would testify as to defendant's hairstyle at the time of the crime; (2) the trial courterred in denying his request for a severance and in permitting codefendant's tattoo tobe introduced into evidence; (3) the trial court erred in admitting gang-related evidence;and, (4) Illinois Pattern Jury Instructions Criminal, No. 3.15 (4th ed. 2000) (hereinafterIPI Criminal 4^th No. 3.15) was erroneous. We affirm.

Defendant's conviction stems from a series of gang-related events in which thevictim, Cory Boston, was shot and killed on June 26, 1998. The relevant events thatled to the victim's death began on the afternoon of May 4, 1998. On that date, near theintersection of 111th Place and Aberdeen Street in Chicago, defendant exited a cardriven by codefendant and began shooting at a group of men who were gatheredoutside a convenience store. The group of men were members of the Black Disciples,which was a rival gang of the Gangster Disciples, of which defendant and codefendantwere alleged to be members. Defendant approached a car in which Robert Williamswas sitting, pointed a gun at him and stated, "This is for my Folks, guy." Defendantpulled the trigger but the gun did not fire. Williams sped away and defendant ran backto codefendant's car. About a block later, the two cars crashed into one another. Codefendant fled the scene while defendant remained in the car partially unconscious. A group of men who were Black Disciples converged on the car and beat defendantuntil police officers arrived. Police officers recovered two guns near the car; however,the guns were never submitted for fingerprint analysis. Defendant was identified byeyewitnesses Robert Williams, Tyrice Jones and Marvin Dixon, all of whom testified tothe above at trial.

Williams further testified he recognized defendant because he had seendefendant around the neighborhood about five or six times prior to that day. Jones alsotestified he knew defendant from the neighborhood and identified defendant as aGangster Disciple. Jones was formerly a Gangster Disciple. Dixon further testified hehad known defendant for about eight years because defendant used to "hang around"the high school Dixon attended. Dixon testified he is not a gang member.

The victim's uncle, Steven Boston, testified that sometime prior to June 26,1998, he was driving in his car when the vehicle in front of him stopped and defendantexited the vehicle. Defendant approached his car and informed Boston that the victimhad beat him while he was "down" or had "messed" up his face. Defendant then toldBoston that he was going to "come after" the victim and the others who had beaten him. At about midnight on June 26, 1998, defendant, codefendant and a third,unknown individual returned to the same area near the intersection of 111th Place andAberdeen Street. At that time, Marvin Dixon and Pierre Martin were outside coveringhis girlfriend's car. Tyrice Jones was sitting in a car parked across the street and thevictim was sitting in his car, which was parked behind Jones' car. Ed Calmes wasstanding on the front porch of his home. Defendant, codefendant and the thirdindividual approached the area on foot and fired shots at Dixon and Martin. They thenapproached the victim's car. One of the men approached the driver's side while theother two men approached the passenger side. The men then fired into the victim'scar, killing him. Calmes, Jones and Dixon testified at trial, all identifying defendant andcodefendant as two of the men who shot the victim.

Calmes further testified that he recognized defendant because he had seendefendant around the neighborhood about a dozen times prior to that evening. Calmesstated that defendant was the man who had approached the driver's side of the victim'scar. He also stated that defendant's hair was in braids, like "corn rows." Calmesidentified defendant in a lineup about two weeks later, but told officers defendant hadchanged his hairstyle. Defendant's braids had been cut off and he had one long braiddown the back of his head. Calmes admitted to having several prior convictions.

Jones further testified he heard Dixon yell, "oh shit, there go Pierre," and thenheard gunshots. He saw defendant at the driver's side of the victim's car. Jonesdescribed defendant's hairstyle that night as a long ponytail. Jones also admitted hehad prior convictions.

Dixon further testified he saw defendant run down the middle of the street with agun in his hand. Dixon yelled, "oh shit," and ran. Despite Jones' testimony, Dixonstated he did not say, "there go Pierre." Dixon then saw defendant shooting into thevictim's car. Dixon also admitted he had prior convictions.

Prior to defendant's trial, Dixon had been arrested and was in jail awaiting trial. According to Dixon's testimony, when he was transported from the jail to the courthouseto testify at defendant's trial, he was placed in the same "bullpen" or lockup area asdefendant and codefendant. Defendant and codefendant approached Dixon anddefendant expressed remorse for the shooting and blamed the shooting on his"youthful actions." Defendant also told Dixon he could help Dixon with his case if Dixondid not testify at defendant's trial. Defendant stated he could "hurt" the witnesses inDixon's case. Dixon understood that "hurt" meant to shoot the witnesses becausedefendant then made a shooting gesture like he was pulling a trigger. Dixon informedthe assistant State's Attorney what had happened in the lockup area and Dixon wasplaced in a segregated unit of the jail in the witness protection program. Dixonadmitted he received a credit on his account at the jail commissary for $35 a week as aresult of being placed in the protection program. Dixon stated, however, the assistantState's Attorney informed him they would not make any "deals" with him on his pendingcase in exchange for his testimony at defendant's trial.

Detective Louis Caesar testified he interviewed defendant in July 1998, anddefendant told the detective he did not remember his whereabouts the night the victimwas killed.

Assistant State's Attorney Stanislaus Gonsalves testified that he alsointerviewed defendant in July 1998, and defendant denied any involvement in theshooting and further said he had witnesses who would testify to his whereabouts thatevening but could not provide their names or addresses.

Investigator Thomas Ptak testified as the State's gang expert. Ptak stated thatdefendant had numerous tattoos that he believed signified defendant was a GangsterDisciple. Ptak also testified that codefendant had a tattoo of two semiautomatic pistolspointing upward with gunpowder coming out from both barrels and the words,"retaliation is a must."

After Ptak's testimony, the court asked defense counsel how many witnessesshe expected to testify. Counsel advised the court she expected to call about four orfive witnesses. The court informed counsel that she could call the witnesses out of turnif necessary. Prior to adjourning court for the day, the court advised the parties that thecase would probably conclude the next day. The court then informed the parties that itwould reconvene court at 10:45 a.m. the next day so that the case could go to the jury"reasonably early."

The next day, the State rested it's case and defendant moved for a directedverdict. The trial court denied defendant's motion and defendant proceeded with hiscase in chief.

Officer Pamela Guice testified that the night the victim was shot, she met withDixon and Jones at the hospital. Officer Guice acknowledged that Jones told Guice'spartner that he saw "Willie P run up to the vehicle along with two unknown offendersfiring several shots into the vehicle."

The parties then entered into a stipulation that if Assistant States's Attorney DanReedy was called to testify, he would state that the first time he spoke with the victim'suncle, Steven Boston, was not until April 2000, more than a year and a half after theshooting.

Defense counsel then called Pierre Martin to testify. Martin testified that he wasformerly a Gangster Disciple but was not a gang member on the night the victim waskilled. Martin also stated that when he heard gunshots, Dixon said neither, "oh shit"nor "it's Pierre."

Defendant's cousin, Carrie Lowe, testified as to defendant's hairstyle throughoutthe summer of 1998. Lowe stated that in May 1998, defendant wore his hair inindividual braids, not "corn rows." According to Lowe, defendant cut most of his braids,except for a few in the back, around the middle of May. Defendant then cut all hisbraids except one.

Defense counsel asked the court for a sidebar, and a discussion was had off therecord. The court then advised the jury that they would be brought back out at 3:15p.m. At 3:15 p.m., court reconvened and defense counsel asked the court for a 10-minute continuance because there were three additional witnesses who had notarrived, but had been in court the previous day. The trial court denied counsel'srequest and counsel rested her case, informing the court, "I have no choice but to rest."

While the jury deliberated, defense counsel moved for a mistrial on the basisthat the trial court's denial of counsel's request for a 10-minute continuance waserroneous. Counsel argued that her witnesses had arrived in court about five minutesafter counsel had rested and were late due to a traffic accident on the expressway. The trial court denied counsel's motion, stating that the court had directed thewitnesses to arrive at 10:45 a.m. that day.

The jury found both defendant and codefendant guilty of first degree murder. Subsequently, counsel filed a motion for a new trial, alleging numerous errors. At thehearing on the motion, defense counsel made an offer of proof as to what the threewitnesses would have stated had they been present to testify. Tracey Poulos, the firstalibi witness, would have testified that she lived in Riverdale, Illinois, and that on theafternoon and evening of June 26, 1998, defendant was at her home. That afternoonand evening, defendant and several other individuals were in her basement watchingmovies. She would further state that none of them left her home that evening and theywere all there the next morning. Defense counsel further stated that if Rena Williams,who is Poulos' daughter, had testified, she would have testified consistent with Poulos'testimony.

As to the third witness, Charita James, defense counsel stated that James, whois defendant's sister, would have testified that she saw defendant shortly after the May4, 1998, incident and defendant had cut his hair. She would also state that in May,June, July, and August of 1998, defendant had short hair that was shaved close to hishead, but had one skinny braid down the back of his head. Defense counsel furtheradvised the court that none of the witnesses' statements had been memoralized inwriting.

The assistant State's Attorney responded that he and an investigator hadspoken with Rena Williams, and Williams was unable to remember the specific datethat defendant had stayed at their house. Williams informed them that she was astudent and had been on vacation from May 1998 until June 1998. The assistantState's Attorney further informed the court that Williams had told him that Poulos wouldlet defendant stay at their house whenever defendant was in trouble in hisneighborhood because defendant could "hide out" there. Williams also stated thatdefendant returned to their house the day the "boys had been shot up in theneighborhood and said that the police were looking for him." Williams further told themthat defendant was arrested about a week later, and it was just before his arrest thatdefendant cut his hair.

The assistant State's Attorney also stated that Tracey Poulos and Charita Jamesrefused to speak with them. The State further pointed out that during the trial, the courthad permitted counsel to call any witnesses out of order, which counsel could havedone the day these witnesses had allegedly been in court. The trial court denieddefendant's motion for a new trial, and defendant now appeals.

On appeal, defendant first contends the trial court abused its discretion indenying defense counsel's motion for a 10-minute continuance to secure the testimonyof Tracey Poulos, Rena Williams and Charita James. Defendant contends thewitnesses' testimony was crucial because Poulos and Williams would have provideddefendant with an alibi, and James would have testified as to defendant's hairstyle thenight the victim was killed.

Whether to grant or deny a motion for a continuance to secure the presence of awitness is within the sound discretion of the trial court, and its ruling will not bereversed on appeal in the absence of a clear abuse of discretion. People v. Ward, 154Ill. 2d 272, 307 (1992). Upon review of the denial of a motion, the factors to beconsidered are: (1) whether the defendant was diligent in attempting to secure thewitness for trial, (2) whether the defendant has shown the testimony was material andmight have affected the jury's verdict, and (3) whether the defendant was prejudiced bythe denial of the motion for a continuance. Ward, 154 Ill. 2d at 307.

Here, although defendant contends the witnesses' testimony is material to thecase, we find that their testimony would not have changed the jury's verdict. Theproposed testimony of Rena Williams would have been completely contradicted by thestatements she gave to the assistant State's Attorney. That would have left TraceyPoulos as the sole alibi witness. Even if Poulos had testified as alleged in the offer ofproof, her testimony would have been viewed with great skepticism by the jury, whoheard the testimony of Calmes, Jones and Dixon, the three eyewitnesses who identifieddefendant as one of the three men who shot the victim. Each of the eyewitnessestestified he had known defendant from the neighborhood and their testimony wasmainly consistent. Also, Calmes and Jones specifically identified defendant as theindividual who approached the driver's side of the victim's car. Although the witnesses' testimony differed slightly as to whether defendant had one long braid or numerousbraids, this is insufficient to raise an issue of reasonable doubt. Minor inconsistenciesin testimony do not, by themselves, create a reasonable doubt. People v. Brisbon, 106Ill. 2d 342, 360 (1985).

Defendant relies on People v. Timms, 59 Ill. App. 3d 129 (1978), and People v.Street, 133 Ill. App. 2d 536 (1971). In Timms, the defendant was convicted of armedrobbery based on the testimony of two eyewitnesses. At trial, he presented an alibidefense and testified that, the day the robbery occurred, he was at his parents' home. The testimony of the defendant's wife as well as his mother corroborated his testimony. Late in the afternoon of the second day of trial, defense counsel learned that thedefendant's father, who is a minister and mayor of his home town, as well as thedefendant's brother, were unable to testify in court that day. Defense counsel asked fora one-day continuance, which the trial court denied. On appeal, this court found thetrial court abused its discretion in denying the motion for a continuance because thetestimony of the two additional alibi witnesses, which would have corroborated thedefendant's testimony, was material and could have affected the outcome of the trial. The court found that because the defendant's credibility as well as the credibility of hisalibi witnesses was crucial to the case, the trial court should have granted thecontinuance. Timms, 59 Ill. App. 3d at 136. The court also noted, the fact that thedefendant's father was a minister as well as mayor of a town might have caused thejury to place a "special degree of confidence" in his testimony. Timms, 59 Ill. App. 3d at137. The court concluded that under these circumstances, had the witnesses beenpermitted to testify, the outcome of the trial might have been different. Timms, 59 Ill.App. 3d at 137.

Here, unlike Timms, the testimony of Tracey Poulos would not have affected theoutcome of the trial. As stated above, her proposed testimony would have beenconsidered in combination with the strong eyewitness testimony. Also, because thetestimony of Rena Williams would have been contradictory and damaging, there wouldhave been no other corroboration of Poulos' alibi testimony and the jury would havedisregarded it.

In Street, the defendant was convicted of armed robbery based on the testimonyof a single eyewitness who had not given police officers a description of the defendant,but had identified the defendant in a lineup. The defendant presented an alibi defenseat trial and testified that at the time of the robbery he was at home with his girlfriendhaving dinner. The defendant further testified that he left his home later that evening toborrow a car to help his friend move. On the second day of trial, before the courtrecessed the jury for lunch, the court informed those present, that it was possible theywould adjourn early that day because of other matters before the court. The court hadadjourned the previous day at 2 p.m. to take care of other matters before the court. When court resumed after lunch, defense counsel presented the testimony of thedefendant's girlfriend, who corroborated his testimony. Defense counsel then movedfor a continuance to bring in at least one other witness the next day. The trial courtdenied the motion and refused to allow defense counsel to make an offer of proof. Thiscourt found on appeal that the trial court erred in denying the continuance because thetime schedule enunciated by the trial court was so vague and because defense counselwas denied the opportunity to submit an offer of proof. Street, 133 Ill. App. 2d at 541. This court also found that although it could not speculate as to what the witnessesmight have testified, the continuance should have been granted so that the defendant's"possible avenues of defense," including the testimony of the defendant's friend fromwhom he borrowed the car, could have been developed. Street, 133 Ill. App. 2d at 541-42.

We also find Street distinguishable. Unlike in Street, the trial court here wasvery clear that court would begin at 10:45 a.m. that morning. The trial court was alsovery clear that court would reconvene at 3:15 p.m. that afternoon. The trial court hadalso given defense counsel an opportunity to call the witnesses out of order theprevious day. Further, it is clear from the offer of proof that Poulos' testimony would nothave changed the jury's verdict.

We also find that Charita James' testimony would not have affected the outcomeof the trial because it would have been cumulative to Carrie Lowe's testimony. Lowetestified that in May 1998, defendant cut his braids off and only had one long braid. Coincidently, Lowe's description is similar to Jones' description that on the night thevictim was killed, defendant's hair was in a ponytail. As stated above, although Calmesstated that defendant's hair was in "corn rows" at the time of the shooting, minorinconsistencies in testimony do not, by themselves, create a reasonable doubt. Brisbon, 106 Ill. 2d at 360. Further, Calmes testified that when he identified defendantin a lineup, defendant had cut his hair, except for one long braid.

Defendant next contends the trial court erred in denying his request for aseverance because he was prejudiced by codefendant's "retaliation is a must" tattoo. Prior to trial, defense counsel made an oral motion to sever defendant's andcodefendant's trials on the basis that defendant was prejudiced by codefendant'stattoo. Defendant argued he was prejudiced because the tattoo was a "statement" thatdefendant was unable to confront and cross-examine codefendant about becausecodefendant would not testify at trial. Specifically, defendant argued that such asituation violates the rule of law announced in Bruton v. United States, 391 U.S. 123,20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968). The trial court denied the motion, finding thatthe words contained in the tattoo were not a "statement" that would implicate Bruton.

The general rule regarding severance is that jointly indicted defendants will betried together (People v. Strayhorn, 35 Ill. 2d 41 (1965)), unless fairness to one of thedefendants requires a separate trial to avoid prejudice. People v. Lee, 87 Ill. 2d 182(1981). Illinois courts have recognized two independent sources of prejudice thatnecessitate separate trials. People v. Rodriguez, 289 Ill. App. 3d 223, 235 (1997). Thefirst, upon which defendant's contention is based, involves an interference with theconstitutionally guaranteed right of confrontation. The other involves a situation inwhich the codefendants' defenses are so antagonistic to each other that one of thecodefendants cannot receive a fair trial jointly with the others.

In the first situation, a severance is necessary when one defendant has madeout-of-court admissions that implicate a codefendant. Where these statements areintroduced into evidence, even with limiting instructions to the jury not to consider thestatements against the codefendant, the codefendant's sixth amendment right ofconfrontation can be violated. Bruton v. United States, 391 U.S. at 137, 20 L. Ed. 2d at485 -86, 88 S. Ct. at 1628. In Bruton, codefendant Evans orally confessed that he andBruton committed the offense of armed postal robbery. At their joint trial, Evans'confession was introduced into evidence. The trial court instructed the jury that Evans'confession, which implicated Bruton in the crime, could only be considered as evidenceagainst Evans and not Bruton. On appeal, the United States Supreme Court held that"because of the substantial risk that the jury, despite instructions to the contrary, lookedto the incriminating extrajudicial statements in determining [Bruton's] guilt, admission ofEvans' confession in this joint trial violated [Bruton's] right of cross-examinationsecured by the Confrontation Clause of the Sixth Amendment." 391 U.S. at 126, 20 L.Ed. 2d at 479, 88 S. Ct. at 1622.

In Lee v. Illinois, 476 U.S. 530, 541, 90 L. Ed. 2d 514, 526, 106 S. Ct. 2056,2062 (1986), the United States Supreme Court further noted that "[o]ur cases recognizethat this truthfinding function of the Confrontation Clause is uniquely threatened whenan accomplice's confession is sought to be introduced against a criminal defendantwithout the benefit of cross-examination."

The decision to grant or deny a severance rests within the sound discretion ofthe trial court and will not be reversed absent abuse. People v. Byron, 116 Ill. 2d 81,92 (1987).

Applying the rule of law announced in Bruton, we must consider whethercodefendant's tattoo is an out-of-court confession or admission that implicateddefendant in the crime charged. Although the tattoo contains a "statement" per se, wedo not believe the tattoo could reasonably be construed as either a confession or anadmission implicating defendant in the crime charged. The constitutional violation thatBruton safeguards against is a nontestifying codefendant's out-of-court hearsaystatement that implicates the defendant in the crime charged. The Bruton Courtobserved that the credibility of the incriminating extrajudicial statements of acodefendant who stands accused "side-by-side" with the defendant are "inevitablysuspect." Bruton, 391 U.S. at 136, 20 L. Ed. 2d at 485, 88 S. Ct. at 1628. We simplycannot construe codefendant's tattoo as falling within the confines of this rule of law.

Although the specific question of whether a tattoo that contains a "statement"can trigger a Bruton violation has not been addressed by this court, this court's holdingin People v. Davenport, 301 Ill. App. 3d 143 (1998), is somewhat instructive. InDavenport, the State was permitted to identify the codefendant's numerous tattoosdenoting his gang affiliation in the Black P-Stone Nation including the tattoos "B.P.S.,""B.S.," and the phrase "Stone life." Davenport, 301 Ill. App. 3d at 149. This courtdetermined as a matter of first impression that a tattoo was not testimonial in natureand the defendant's sixth amendment right to confrontation was not violated where anontestifying codefendant's gang tattoos were displayed to the jury. Davenport, 301 Ill.App. 3d at 154, habeas corpus granted, United States ex rel. Clemons v. Walls, 202 F.Supp. 2d 767 (N.D. Ill. 2002), habeas corpus reversed by Clemons v. McAdory, 58 Fed.Appx. 657 (7th Cir. 2003). Davenport further noted that courts in California and Hawaiihave essentially reached similar conclusions in holding that a person or his body maybe used as an exhibit or demonstrative evidence, citing People v. Morgan, 191 Cal.App. 3d 29, 236 Cal. Rptr. 186 (1987), and State v. Kaiama, 81 Haw. 15, 911 P.2d 735(1996).

Defendant argues Davenport is factually distinguishable because codefendant'stattoo was not just an illustration; rather, it contained a statement implicating defendant,which constituted "written hearsay." As stated above, we do not believe codefendant'stattoo can be construed as a confession or admission implicating defendant in thecrime charged.

Defendant also maintains that the jury should have received a limiting instructionadvising them that the tattoo was only admissible as to codefendant and not defendant. We note, however, that defense counsel never requested a limiting instruction. Defendant's contention is waived. Further, the court did instruct the jury beforedeliberations that evidence admitted as to codefendant could not be considered againstdefendant. We find no error. Defendant additionally maintains that the prosecutor'sstatements in closing arguments referencing codefendant's tattoo were also prejudicial. Again, defense counsel failed to object and defendant's contention is waived. Weconclude the trial court did not abuse its discretion in denying defendant's motion forseverance.

Defendant further contends codefendant's tattoo was improperly admitted intoevidence because it was not relevant to prove motive and was highly inflammatory withlittle or no probative value and prejudiced defendant.

Although the State has no obligation to prove motive, the State may introduceevidence which tends to show that an accused had a motive for killing the deceased. People v. Smith, 141 Ill. 2d 40, 56 (1990). Any evidence which tends to show that anaccused had a motive for killing the deceased is relevant because it renders moreprobable that the accused did kill the deceased. Smith, 141 Ill. 2d at 56. For suchevidence to be considered competent, it must, "'at least to a slight degree, tend toestablish the existence of the motive relied upon or alleged.'" People v. Easley, 148 Ill.2d 281, 326 (1992), quoting Smith, 141 Ill.2d at 56.

Here, codefendant's tattoo was admitted to establish that the motive for shootingthe victim was retaliation for injuries defendant suffered at the hands of rival gangmembers. Also, the additional evidence presented at trial established that defendanthad threatened to "come after" those who he believed had beat him. Further, the Stateproceeded on an accountability theory, meaning that defendant and codefendant wereresponsible for each other's actions regardless of whose bullets actually struck thevictim. We find the admission of codefendant's tattoo relevant and proper.

Defendant next contends the trial court erred in admitting gang-related evidence. He maintains that because the shooting could have been explained without theintroduction of gang evidence, it was error to admit any evidence of gang activity.

Evidence that the defendant was a member of a gang or participated in gang-related activities may be admissible at trial, despite its prejudicial effect, to establish acommon purpose or design or to provide a motive for an otherwise inexplicable act. People v. Patterson, 154 Ill. 2d 414, 458 (1992). However, the evidence's prejudicialeffect must not substantially outweigh its probative value. People v. Fluker, 318 Ill.App. 3d 193, 204 (2000). The trial court's ruling is not to be overturned on appealunless a clear abuse of discretion is shown. People v. Hamilton, 328 Ill. App. 3d 195,202 (2002).

Here, the trial court allowed evidence of gang-related activities to be introducedinto evidence because it found the victim's death was "inextricably part and parcel ofthe beating." We agree. The gang evidence was relevant to explain the entiresequence of events beginning with the May 4, 1998, incident in which defendant shot atrival gang members, who then in turn beat him when his car crashed. The events thenculminated in the victim's death on June 26, 1998, when defendant and codefendantreturned to the same area to seek revenge on the same rival gang members. The gangevidence was necessary to explain what would otherwise be an inexplicable shooting. We are unable to find that the trial court abused its discretion under thesecircumstances.

Lastly, defendant contends the trial court misstated the law when it issued IPICriminal 4^th No. 3.15 to the jury regarding eyewitness testimony. Defendantacknowledges he failed to object to the instruction at trial, but urges this court toconsider his contention under plain error.

Although defendant raised the issue in a posttrial motion, in order to preserve anissue for review, defendant must both object at trial and raise the issue in a posttrialmotion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Even if we were to addressdefendant's contention, we find any error harmless.

IPI Criminal 4^th No. 3.15, as tendered to the jury, read:

"When you weigh the identification testimony of a witness, youshould consider all the facts and circumstances in evidence, including butnot limited to, the following:

The opportunity the witness had to view the offender at the time ofthe offense.

The witness's degree of attention at the time of the offense.

The witness's earlier description of the offender.

The level of certainty shown by the witness when confronting thedefendant.

The length of time between the offense and the identificationconfrontation."

Specifically, defendant argues that by using the connector "or" between each ofthe factors, the court incorrectly informed the jury that they could consider any one ofthe five factors, rather than all of them. Defendant relies on People v. Gonzalez, 326Ill. App. 3d 629 (2001). In Gonzalez, the trial court gave an instruction identical to theinstruction in the case at bar. The defendant argued on appeal that he did not receivea fair trial because the instruction as given misstated the law. This court agreed withthe defendant that the instruction was erroneous, but further considered whether theerror was harmless. The court concluded that, because the evidence was closelybalanced and because the prosecutor emphasized the erroneous instruction in closingarguments, the error was not harmless and a new trial was proper. Gonzalez, 326 Ill.App. 3d at 635.

We find Gonzalez distinguishable. Here, as stated previously, the evidence wasnot closely balanced. Further, the prosecutor never mentioned the instruction inclosing arguments. We find any error harmless. See also People v. Furdge, 332 Ill.App. 3d 1019 (2002); People v. Mercado, 333 Ill. App. 3d 994 (2002); People v.Brookins, 333 Ill. App. 3d 1076 (2002); People v. Smith, 341 Ill. App. 3d 530 (2003);and, People v. Carrero, 345 Ill. App. 3d 1 (2003) (all finding that the erroneousinstruction was harmless because the evidence was not closely balanced and theoutcome of the case would not have been different had the jury been instructedproperly). See also People v. Tisley, 341 Ill. App. 3d 741 (2003) (finding that the use of"or" in the instruction was not error).

Accordingly, we affirm the judgment of the trial court.

Affirmed.

HOFFMAN, P.J. and SOUTH, J., concur.

1. Willie Bishop is not a party to this appeal.