People v. McGee , 2015 IL App (1st) 122000 ( 2015 )

Illinois Official Reports
Appellate Court
People v. McGee, 2015 IL App (1st) 122000Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DARRYL McGEE, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-12-2000
Filed January 23, 2015
Rehearing denied February 18, 2015
Held Defendant’s conviction for stalking a Chicago Transit Authority
(Note: This syllabus employee was reversed and the cause was remanded for a new trial
constitutes no part of the where the trial court erred in admitting, pursuant to the State’s motion,
opinion of the court but evidence with respect to an incident in which defendant and the
has been prepared by the alleged victim’s husband engaged in a violent encounter shortly after
Reporter of Decisions defendant appeared at the station where the wife worked and
for the convenience of defendant cut the husband’s arm, leaving a wound requiring 100
the reader.) stitches, since the husband declined to bring charges against defendant
and evidence related to the altercation between defendant and the
husband was not part of defendant’s alleged course of stalking
conduct and was not relevant to prove his intentions toward his alleged
victim.
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-19970; the
Review Hon. Lauren Gottainer Edidin, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Melinda Grace Palacio, all
Appeal of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Matthew Connors, and Noah Montague, Assistant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion.
Justices Lampkin and Rochford concurred in the judgment and
opinion.
OPINION
¶1 After a jury trial, the defendant, Darryl McGee, was convicted of stalking (720 ILCS
5/12-7.3(a)(1) (West 2010)) a Chicago Transit Authority (CTA) employee and sentenced to a
term of 30 months in prison. On appeal, he contends his conviction should be reversed where
the State failed to prove his guilt beyond a reasonable doubt. Alternatively, he argues that he
is entitled to a new trial where the circuit court erred in admitting highly prejudicial evidence
of other crimes and failing to comply with Illinois Supreme Court Rule 431(b) (eff. May 1,
2007). For the reasons that follow, we reverse and remand the cause for a new trial.
¶2 In November 2010, the defendant was indicted on two counts of stalking. Count I alleged
that, on October 4, 2010, and continuing through October 8, 2010, the defendant knowingly
engaged in a course of conduct directed at Vicki Glanz, “to wit: repeatedly arrived at [her]
place of employment yelling obscenities, and he knew or should have known” that his
conduct would cause a reasonable person to fear for her safety. 720 ILCS 5/12-7.3(a)(1)
(West 2010). Count II alleged the same conduct in violation of section 12-7.3(a)(2) of the
Criminal Code of 1961 (Code) (720 ILCS 5/12-7.3(a)(2) (West 2010) (knew or should have
known conduct would cause a reasonable person to suffer other emotional distress)).
¶3 On August 2, 2011, the State filed a motion in limine seeking to admit evidence of other
crimes by the defendant. Specifically, the State sought to admit evidence of an altercation
between the defendant and Vicki’s husband, Christopher Glanz, which occurred on
October 8, 2010. According to the State’s motion, Christopher confronted the defendant
about his harassment of Vicki and a physical altercation ensued which resulted in the
defendant stabbing Christopher in his arm with a box cutter and the defendant requiring
hospitalization for his injuries. The State asserted that, while Christopher declined to press
charges for his injury, evidence of the altercation was relevant to prove the defendant’s
violent intent toward Vicki. The State further argued that the altercation corroborated Vicki’s
concerns for her safety and showed the defendant’s “continuing narrative which began with
the harassment and threats to Vicki Glanz and ended with the assault on her husband.” The
defendant objected to the admission of the evidence, arguing that Christopher was the
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aggressor in the altercation and that the altercation was unrelated to his alleged conduct
directed at Vicki.
¶4 The circuit court granted the State’s motion, finding that the indictment covered
October 8, 2010, which was the date of the altercation. The court also stated that whether the
altercation constituted part of the course of stalking conduct was a matter for the trier of fact.
¶5 On June 13, 2012, the defendant’s trial commenced with a different presiding judge than
the judge that granted the State’s previous motion in limine. Although the defendant renewed
his objection to the other-crimes evidence, the circuit court allowed the previous judge’s
ruling to stand.
¶6 Vicki, a CTA combined rail operator, testified that, in October 2010, she was assigned to
work at the Evanston Central Street Purple Line station, where she had been working for
several years. On days she did not operate a train, she worked in the station’s customer
service kiosk, which was located near the turnstiles where customers entered to board the
train or exit the station. Vicki stated that customers often approached the kiosk to ask her
questions and that she was the only CTA employee working at that location to assist
customers.
¶7 According to Vicki, around 3 p.m. on October 4, 2010, the defendant entered the station
and stood near the turnstile. Because his train pass was not working, the defendant asked
Vicki for assistance. She testified that she used her access card to allow the defendant
through the turnstile because his card was damaged. After the defendant walked through the
turnstile, Vicki returned to the other customers that she had been speaking with. However,
she noticed that the defendant never walked upstairs to the train platform but remained
standing in her vicinity. Vicki asked if he needed any other assistance, and the defendant
asked her where the “201 bus” was located. She told him that bus was outside, pointing
toward the doors that open to Central Street. Again, the defendant did not move, but instead
asked Vicki where he could find the 201 bus to which she gave him the same answer. When
the defendant asked her the same question a third time, another customer answered “[d]ude,
it’s right outside. You have to go outside to get the bus.” The train then approached and the
crowd near Vicki ran upstairs to board it, but the defendant did not move. At that point, Vicki
noticed that another customer needed assistance, so she walked to that person near the
turnstile. She stated that the defendant walked behind her and stood “very close” to her. She
asked him whether he needed anything else, and he repeated the same question about the 201
bus. Vicki testified that she told him that she had answered that question and that there was
nothing more for them to discuss. She turned and walked toward her kiosk, but the defendant
started “cursing and calling [her] names,” such as “nigga bitch.” Vicki entered her kiosk and
called the CTA control center.
¶8 According to Vicki, the controller heard the defendant yelling in the background and
asked her whether she was okay. She told the controller what happened and asked for the
police to be called. Vicki testified that the defendant was “cursing[ and] banging on the
windows” of her kiosk while she was on the phone. After she hung up the phone, the
defendant ran upstairs and then returned, continuing to call her names and stating that he
would “get her schedule,” “find her,” and that he was “going to get [her].” The defendant
then went back upstairs, and the police arrived. Vicki told the officer that the defendant went
upstairs and the officer proceeded to look for him. When the officer returned alone, Vicki
asked about the defendant, and the officer told her that she allowed him to board the train.
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Vicki asked the officer why she allowed that, and the officer stated that he did not do
anything wrong. At that point, Vicki informed the officer that the defendant had threatened
her. The officer told Vicki that she did not have that information beforehand and told her to
call the police if the defendant returned.
¶9 No surveillance video from October 4, 2010, was admitted into evidence. However,
Evanston police officer Conley testified that she responded to the October 4 dispatch, but she
was not informed of any specific threats made to an individual. When she arrived at the
scene, Vicki immediately stated that the defendant “went upstairs, go get him,” but she did
not mention any physical threats. Officer Conley located the defendant, told him to leave the
CTA employee alone, and allowed him to get on the train. When Officer Conley told Vicki
that she let the defendant board the train, Vicki informed her that he had threatened her and
said that he was “going to kick her ass or beat her ass.” Officer Conley advised Vicki to call
the police if the defendant returned.
¶ 10 Vicki testified that around 3 p.m. on October 8, 2010, she was sweeping outside her kiosk
when the defendant appeared “in [her] face,” asking where he could find the 201 bus. Vicki
turned around, entered her kiosk, and called the CTA control center. The defendant “started
banging on the windows and calling [her] names again, calling [her] bitch.” Turning away
from the defendant, Vicki began to cry and asked the controller to remain on the phone with
her until the police arrived. While waiting for the police, Vicki used her cell phone to call her
husband and left him a message; she also called an Evanston police officer whom she knew
personally. According to Vicki, it seemed like the incident went on for “maybe 20 minutes.”
The controller, who was watching through the security cameras, told Vicki that the defendant
had left. But he returned shortly thereafter and continued banging on her window and calling
her “a bitch.” The defendant left again, and the police arrived minutes later. Vicki told the
officer that the defendant went outside. Shortly thereafter, the officer returned without the
defendant and told Vicki to call the police if he returned.
¶ 11 The surveillance video of October 8 was admitted into evidence and published to the
jury. The video does not contain any audio. Vicki testified as the video played, confirming
the accuracy of the depiction of the incident around 3 p.m. The video depicts Vicki inside her
kiosk and the defendant standing outside of it, speaking to her through the glass. The
defendant, who is carrying a backpack, then repeatedly knocks on the window with his
knuckles for a few minutes, walks away, then returns, again knocking on the window until he
finally leaves the station a few minutes later. An officer arrives, speaks to Vicki, and leaves
the scene. The incident does not exceed 10 minutes in duration.
¶ 12 Vicki further testified that, around 4:30 p.m. on October 8, her husband, Christopher,
arrived at the station. Around 5 p.m., the defendant walked into the station. When Vicki saw
him, she “was afraid” and “went silent.” Christopher asked her if that was the man harassing
her, and Vicki told him that it was. She went into her kiosk to call the CTA control center,
and Christopher confronted the defendant. Vicki testified that she did not hear their
conversation, but she heard that their voices were loud and she saw that their faces were
close to one another. The two men then began fist-fighting. She stated that both Christopher
and the defendant were throwing punches, and she saw that Christopher was bleeding.
However, Vicki testified that she did not see a weapon.
¶ 13 Vicki testified that she reported both the October 4 and October 8 occurrences to her
manager and documented them in “the daily reports.” She stated that, after the October 4
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occurrence, she felt “scared” and “afraid” of the possibility that the defendant would return to
the station while she was working. When he did return on October 8, she testified that she
felt “very scared,” “helpless,” “embarrassed,” and “weak.” She stated again that she “was
afraid of the defendant,” and that she feared that he would harm her.
¶ 14 On cross-examination, Vicki clarified that, on October 4, the defendant “banged” on the
kiosk window with his “fists,” but on October 8, he “banged” on the window with his
“knuckles.” When asked whether the defendant said that he was “going to hurt” her on
October 4, Vicki answered that she “should have said it before, but [the defendant] said he
was going to kick my ass.” She explained that she did not testify to that fact on her direct
examination because she “was just shaken up.” Further on cross-examination, Vicki admitted
that when the defendant returned on October 8, he did not “kick [her] ass,” touch her, or pull
a weapon on her, and when he returned later that day, he did not speak to her or walk toward
her kiosk. Rather, she admitted that Christopher initiated contact with the defendant.
¶ 15 Christopher testified that, on October 8, 2010, Vicki left a voicemail message on his cell
phone around 3 p.m., prompting him to drive to her workplace. Around 5 p.m., the defendant
walked into the station and Vicki “turned pale,” telling Christopher that he was the passenger
that had harassed her that day. Christopher testified that he immediately confronted the
defendant, yelling at him to leave the station and to leave Vicki alone. He said that the
defendant responded by stating that he was just trying to catch the train and that he had only
asked Vicki where the 201 bus could be found. Christopher stated that he continued “cussing
and hollering” at the defendant, who then responded by parroting his words. According to
Christopher, their faces were very close and, when their noses touched, the defendant tried to
bite him. Within that moment, Christopher shoved the defendant, and the defendant cut
Christopher’s arm. He testified that, after he was cut, he punched the defendant in the face
repeatedly and continued punching him and kicking him while he was on the ground. After
the fight, Christopher used his shirt to wrap his arm and began to walk down the block to the
hospital. However, he returned to the station when he saw the defendant standing at the bus
stop because he wanted to “protect his wife.” Christopher identified a photograph of his
wound, which required over 100 stitches, and he displayed the scar on his arm for the jury to
view. In addition, Christopher identified photographs of the defendant’s backpack and the
box cutter later retrieved from the backpack that day.
¶ 16 Defense counsel thoroughly cross-examined Christopher on the fact that he initiated the
fight with the defendant. On redirect examination, the State asked Christopher whether he
declined to press charges against the defendant for aggravated battery, which he responded
that he did. Defense counsel objected to the question and moved for a mistrial, arguing that
the fact no additional charges were filed in connection to the fight was beyond the scope of
his cross-examination and highly prejudicial because the jury could speculate as to whether
there might have been an additional charge filed against the defendant. The circuit court
denied the defendant’s motion for a mistrial and overruled the objection, finding that the
other-crimes evidence motion had been granted and the State mentioned that Christopher
declined to press charges in its opening statement, with no objection. Indeed, the assistant
State’s Attorney stated during her opening argument that Christopher “told the police, ‘Look,
I got my justice of the street, you don’t have to charge him with anything.’ ”
¶ 17 The October 8 surveillance video depicting the altercation between the defendant and
Christopher was published to the jury. In the video, the defendant, who is carrying a
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backpack, walks into the station and attempts to use his CTA card to pass through the
turnstile while Christopher, who is standing near the turnstile, speaks to Vicki through the
window of her kiosk. As the defendant’s card fails to let him through the turnstile,
Christopher confronts him. Although there is no audio, the men appear to be yelling at each
other, and they are standing very close together. When their faces are nearly touching, the
defendant makes a motion toward Christopher’s face with his head, and Christopher shoves
the defendant backward. The defendant then reaches into his pocket and pulls out a small
item with his hand. The two men continue yelling at each other, and Vicki exits her kiosk for
a moment to watch the fight. Christopher repeatedly punches the defendant until he falls to
the ground. He then repeatedly kicks the defendant. As Christopher walks away from the
defendant, he wraps his arm with his shirt, and the defendant attempts to stand up, but falls
down in the background.
¶ 18 Evanston police officer Nicholas Demos testified that he responded to the initial
October 8 dispatch in which Vicki told him that she was being harassed by someone and that
the individual was “pounding on the glass of her booth.” Officer Demos searched the area but
did not find anyone fitting the defendant’s description. Later that day, he returned to the
station to respond to the altercation between the defendant and Christopher. Upon arriving at
the station, Officer Demos found the defendant’s backpack in the lobby and retrieved a box
cutter from the inside of it. He identified the photos of the backpack and box cutter.
¶ 19 The defendant testified in his defense, stating that, on October 4, 2010, he was traveling
to a job interview with the Vector Company in Skokie. He was not familiar with the CTA
schedule, so when he arrived at the station, he approached Vicki to ask about the 201 bus
schedule. According to the defendant, Vicki was “very ambiguous and very rude and very
bitter and inattentive.” She told him the bus was “over that way.” The defendant walked
around for a minute, but he was confused so he returned and knocked on the kiosk window.
He denied that he “banged” on the window. Again, Vicki told him vaguely that the bus was
“over there.” The defendant testified that he eventually left, returned, and then again asked
Vicki about the bus. He stated that she remained rude and ambiguous, so he left and walked
up to the train platform at which time Officer Conley approached him. The defendant denied
admitting to Officer Conley that he called Vicki a “bitch.” He also denied ever threatening
Vicki or stating that he would “kick her ass.” The State called Officer Conley in rebuttal, and
she testified that the defendant admitted to her that he called Vicki a “bitch.” The defendant
testified that, in the evening, he reported Vicki’s unprofessional behavior by calling the
CTA’s 888 phone number.
¶ 20 The defendant testified that, on October 8, 2010, he returned to the CTA station to travel
to his interview at the Vector Company, which had been rescheduled from October 4. He
asked Vicki about the 201 bus, hoping she would be more helpful, but she again responded
rudely and ambiguously. He left for his interview. He denied that he called Vicki names or
banged on her window. When he returned to the station, his CTA card did not work because
it was damaged. The defendant testified that, as he began to look up from the turnstile,
Christopher confronted him by “yelling and cursing” at him. According to the defendant, he
told Christopher that he was simply trying to catch the train, but Christopher pushed him
backward and attacked him. The defendant stated that Christopher punched him multiple
times and kicked him several times while he was lying on the ground. As a result of the fight,
the defendant was hospitalized for internal head injuries and cracked ribs.
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¶ 21 On cross-examination, the defendant admitted he arrived for his interview late on
October 4 and that the company rescheduled it for October 8. However, he denied that he
was angry about having been late. The defendant further denied that he had a box cutter in
his possession on October 8, that he used it to cut Christopher, or that it was found in his
backpack. However, he identified the backpack in the photograph as the one that he had been
carrying that day.
¶ 22 The jury found the defendant guilty of both stalking counts, and the circuit court denied
the defendant’s motion for a new trial. After a hearing, the court sentenced the defendant to
30 months’ imprisonment on one count of stalking, finding the second count merged
pursuant to the one-act, one-crime rule. This appeal followed.
¶ 23 We first address the defendant’s argument that the circuit court erred in admitting
evidence of his altercation with Christopher. At the outset, we reject the State’s argument that
the defendant forfeited this evidentiary issue because he failed to preserve it in a posttrial
motion. The record demonstrates that the defendant objected to the State’s motion in limine
to introduce the evidence, renewed the objection before the new trial judge, and raised the
issue sufficiently in his motion for a new trial. Thus, we find that the defendant properly
preserved the issue for review.
¶ 24 The defendant contends that the evidence of his altercation with Christopher was not part
of his alleged course of stalking conduct and was not relevant to prove his intent toward
Vicki. Even if the evidence was relevant to the stalking offense, the defendant argues that the
court erred in allowing the altercation to become the focal point of the trial. Accordingly, he
maintains that the introduction of this highly prejudicial evidence requires reversal. The State
counters that the evidence of the defendant’s altercation with Christopher, including his
indigent responses to Christopher’s requests that he leave Vicki alone and his possession of a
“deadly weapon,” showed that his “intent throughout the entire course of conduct” was not
merely his lack of understanding the public transit system schedule. We agree with the
defendant and, for the reasons that follow, we reverse and remand for a new trial.
¶ 25 Evidence of a crime or other bad acts for which a defendant is not on trial is inadmissible
if relevant merely to establish the defendant’s propensity to commit crime. People v. Placek,
184 Ill. 2d 370, 385 (1998). “Such other-crimes evidence is objectionable because a jury,
upon hearing this evidence, might convict the defendant merely because it feels that the
defendant is a bad person who deserves punishment.” Id. Exceptions exist, of course, to
allow the admission of other-crimes evidence when it is relevant to establish any material
question other than the defendant’s propensity to commit a crime. Id. For instance, our courts
have deemed other-crimes evidence admissible if relevant to demonstrate knowledge, intent,
motive, design, plan or identification. People v. Lindgren, 79 Ill. 2d 129, 137 (1980).
Other-crimes evidence has also been deemed admissible when the evidence: was relevant in
placing a defendant in proximity to the time and place of the presently charged offense;
tended to prove a fact in issue; rebutted an alibi defense; or demonstrated a consciousness of
guilt. People v. Diaz, 78 Ill. App. 3d 277, 279-80 (1979). However, even where other-crimes
evidence is relevant for a permissible purpose, the circuit court must weigh the prejudicial
effect of admitting the other-crimes evidence against its probative value. Placek, 184 Ill. 2d
at 385. The court should exclude evidence of other crimes where its prejudicial effect
substantially outweighs its probative value. Id. The admissibility of other-crimes evidence
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rests within the sound discretion of the circuit court, and we will not overturn its decision
absent a clear abuse of that discretion. Id.¶ 26 In Lindgren, the supreme court affirmed the appellate court’s decision reversing the
defendant’s armed robbery and murder convictions and remanding for a new trial because the
trial court erroneously admitted highly prejudicial evidence of a subsequent arson crime
which was unrelated to the charged crime. Lindgren, 79 Ill. 2d at 132-33. The defendant was
charged with the armed robbery and murder of Arthur Lewis which took place around
midnight on April 17-18, 1977. Id. At trial, witness Ina Lewis testified that, about an hour
after the defendant returned from the murder scene, he drove her to his ex-wife’s home and
set the home on fire. Id. at 134-35. Lewis testified that the defendant had stated that he
warned his ex-wife earlier that day that he would burn the home down if she was not home
when he returned. Id. at 134. After they left the ex-wife’s home, the car that they were
traveling in got stuck in a ditch. Id. The next morning, while waiting near the incapacitated
vehicle, both Lewis and the defendant were arrested. Id. at 135. Just before the arrest, the
defendant asked Lewis to “ ‘ditch’ ” his gun and wallet, which she did. Id.¶ 27 The defendant objected to the admission of the arson evidence, arguing that it was
unrelated to his charges for which he was on trial. Id. The State contended that the evidence
was relevant to demonstrate a consciousness of guilt, because under its theory, the defendant
stole the gun from his ex-wife’s home earlier in the day and burned the home down after
using the gun in the murder in order to conceal the fact the gun was missing. Id. at 137-38.
The supreme court rejected the State’s “strained interpretation of events,” noting that: metal
does not burn; Lewis testified that the defendant did not ask her to conceal the weapon until
after the arson; and the defendant provided a different reason for burning his ex-wife’s home
down. Id.¶ 28 The supreme court also rejected the State’s argument that the arson evidence was
admissible because it established his presence near the scene of the crime. Id. at 138-39. The
court stated that “[g]enerally, time and place proximity, without more, is an insufficient basis
for permitting other-crimes evidence.” Id. at 139. The court noted that proximity plus
additional reasons, such as relevance to the defendant’s knowledge, common design or
scheme, or identity, may support the admissibility of other-crimes evidence, but that none of
these reasons were present in its case. Id. The supreme court explained that the arson
evidence added nothing to the State’s case as Lewis already testified to the defendant’s
presence at the robbery and murder scene, establishing time and place proximity. Id. For
similar reasons, the court rejected the State’s contention that the arson evidence was
admissible as part of a “continuing narrative of [the] crime.” Id. at 139-40. The supreme
court found that the arson was a “distinct crime undertaken for different reasons at a different
place at a separate time.” Id. at 140.
¶ 29 While the supreme court acknowledged that the admission of prejudicial evidence may be
deemed harmless, the “extensive discussion of the collateral crime of arson” was not
harmless. Id. at 141. The court stated that the arson evidence “could have influenced the jury
to convict him only out of a belief that he deserves punishment.” Id. The court acknowledged
that its opinion was not a finding of the defendant’s innocence and that an uncontaminated
jury could find Lewis’s testimony regarding the robbery and murder credible. Id. at 142.
However, it is the jury’s function as the fact finder to determine witness credibility and
resolve conflicts in the testimony. Id. Thus, the court remanded the cause for a new trial. Id.-8-
¶ 30 We find the facts of Lindgren comparable to the facts of the case at bar. Like in Lindgren,
we do not accept the State’s contention that the defendant’s altercation with Christopher
constituted a continuing narrative of his alleged stalking offense toward Vicki as the
altercation was a “distinct” event “undertaken for different reasons” at a different time. See
Lindgren, 79 Ill. 2d at 140. Other-crimes evidence is admissible if it is part of a continuing
narrative of the event giving rise to the offense or is intertwined with the offense charged.
People v. Abernathy, 402 Ill. App. 3d 736, 751 (2010). Stated otherwise, when facts
concerning the uncharged criminal conduct are part of a continuing narrative of the charged
criminal conduct, they do not concern separate, distinct, and unconnected crimes. Id. (finding
evidence of fire at the home where the charged domestic battery offense occurred minutes
before was part of continuing narrative surrounding the domestic violence incident).
¶ 31 In this case, the defendant allegedly stabbed Christopher for a distinct reason and after
the time the charged offense was completed. The defendant was charged with stalking Vicki
under sections 12-7.3(a)(1) and (a)(2) of the Code by “repeatedly arriv[ing] at [her] place of
employment yelling obscenities” when he knew or should have known that his conduct
would cause a reasonable person to fear for her safety or suffer other emotional distress. The
altercation between the defendant and Christopher occurred approximately two hours after
the defendant’s October 8 interaction with Vicki and did not involve any contact with Vicki.
Rather, Vicki, Christopher and the defendant all testified that, when the defendant returned to
the station on October 8, he said nothing to Vicki and did not approach her; rather, he walked
to the turnstile at which time Christopher confronted and attacked him. Christopher admitted
that he initiated contact with the defendant and admitted that the defendant never approached
Vicki at that time, but had stated that he was only trying to ride the train. The surveillance
video substantiates the witnesses’ testimony in this regard. Thus, we cannot find that the
altercation constituted a continuing narrative of the defendant’s alleged stalking conduct
directed at Vicki.
¶ 32 Similarly, we reject the State’s argument that the evidence proves the defendant’s intent
to harm Vicki by showing that he arrived at her workplace with a “deadly weapon.” Like the
court in Lindgren determined that the arson crime was not necessary to establish the
defendant’s time and proximity to the murder scene, evidence of the altercation did not need
to be admitted in this case in order to bring in evidence that the box cutter was retrieved from
his backpack later in the day when he was arrested. See People v. Fauntleroy, 224 Ill. App.
3d 140, 149 (1991) (reference to evidence related to the defendant’s arrest on an outstanding
warrant was deemed admissible as part of narrative testimony regarding circumstances
surrounding the arrest for the charged offense). Thus, even though evidence of the box cutter
may have been admissible, it was not necessary to discuss the altercation in order to admit it.
¶ 33 We further find that no other exceptions to the other-crimes rule apply here. Contrary to
the State’s argument that the altercation proves the defendant’s intent to harm Vicki, we
cannot conclude that his mere presence at the train station the second time on October 8
demonstrated his intent to stalk Vicki. The version of the stalking statute under which the
defendant was charged provides:
“(a) A person commits stalking when he or she knowingly engages in a course of
conduct directed at a specific person, and he or she knows or should know that this
course of conduct would cause a reasonable person to:
(1) fear for his or her safety or the safety of a third person; or
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(2) suffer other emotional distress.” 720 ILCS 5/12-7.3(a) (West 2010).
Section 12-7.3(c) of the Code (720 ILCS 5/12-7.3(c) (West 2010)) also defines several
relevant terms, including:
“(1) ‘Course of conduct’ means 2 or more acts, including but not limited to acts in
which a defendant directly, indirectly, or through third parties, by any action, method,
device, or means follows, monitors, observes, surveils, threatens, or communicates to
or about, a person, engages in other non-consensual contact, or interferes with or
damages a person’s property or pet. A course of conduct may include contact via
electronic communications.
***
(6) ‘Non-consensual contact’ means any contact with the victim that is initiated or
continued without the victim’s consent, including but not limited to being in the
physical presence of the victim; appearing within the sight of the victim; approaching
or confronting the victim in a public place or on private property; appearing at the
workplace or residence of the victim; entering onto or remaining on property owned,
leased, or occupied by the victim; or placing an object on, or delivering an object to,
property owned, leased, or occupied by the victim.” 720 ILCS 5/12-7.3(c) (West
2010).
¶ 34 We cannot conclude that the defendant’s physical presence within Vicki’s sight at the
train station constituted “non-consensual contact” under the Code when there is no evidence
that he knew she would be present at the time he returned from his interview on October 8.
Moreover, the altercation did not tend to prove a fact in issue, such as identity or motive, of
the stalking offense nor did it rebut an alibi or demonstrate a consciousness of guilt as to his
earlier conduct with Vicki. See Diaz, 78 Ill. App. 3d at 279-80 (stating exceptions to rule
barring other-crimes evidence include when evidence is relevant to establish time and place
proximity, prove a fact in issue, rebut an alibi or demonstrate a consciousness of guilt). The
defendant’s identity and presence were undisputed; the nature of his contact with Vicki on
October 4 and October 8 around 3 p.m. was the only disputed fact.
¶ 35 The State’s reliance on People v. Ranstrom, 304 Ill. App. 3d 664 (1999), is also
unpersuasive. In Ranstrom, the court determined that evidence of the defendant’s numerous
violations of orders of protection obtained by his ex-girlfriend was relevant in proving the
State’s theory that he was motivated by his obsession with the woman when he attacked her
new boyfriend. Id. at 675. Unlike in Ranstrom, the defendant’s stabbing of Christopher does
not help establish whether his earlier conduct toward Vicki violated the stalking statute.
Further, while the circuit court was correct that the indictment included the date of the
altercation, it does not follow that the evidence is per se admissible. Thus, based on the
record before us, we find that the circuit court abused its discretion when it granted the
State’s motion to admit the evidence of the altercation between the defendant and
Christopher.
¶ 36 As the Lindgren court observed, improper admission of other-crimes evidence does not
automatically require reversal if the error is deemed harmless. However, like in Lindgren, we
find that the admission of the other-crimes evidence in this case was not harmless where its
use was so pervasive during the defendant’s trial that it nearly became unclear as to whether
he was being tried for stalking Vicki or stabbing Christopher.
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¶ 37 Evidence of the altercation did not come in merely through the questioning of a single
witness like the arson evidence did in Lindgren. Instead, testimony about the altercation was
adduced from Vicki, Christopher, Officer Demos, and the defendant. Additionally, the State
specifically argued that Christopher did not press charges against the defendant for the
stabbing, insinuating that the defendant should have or could have been charged with a crime
related to the altercation. The jury was also shown the surveillance video depicting the
altercation and photographs of the box cutter, the defendant’s backpack, and Christopher’s
wound, and Christopher displayed his scar for the jury to view.
¶ 38 The evidence adduced at the defendant’s trial went far beyond the reasons the State
claimed it wanted to use the evidence; that is, to establish that the defendant continually
stalked Vicki or possessed a weapon at her place of employment. We see no other reason for
the evidence of the altercation with Christopher to be admitted other than to prove the
defendant was a bad person deserving of punishment. Given the highly prejudicial nature of
other-crimes evidence and the manner in which the State used the evidence in this case, we
cannot find that the evidence did not contribute to the jury’s verdict. We caution, as the court
did in Lindgren, that our decision does not hold that the defendant is innocent. Rather, the
stalking case boiled down to the credibility of the witnesses and credibility determinations
are within the province of the jury, not the reviewing court. Lindgren, 79 Ill. 2d at 142. A
jury may conclude, following a trial without the admission of the highly prejudicial evidence,
that the State’s witnesses are credible, but that is not our decision to make.
¶ 39 Although our decision effectively disposes of the case, we must also consider the
defendant’s insufficiency-of-the-evidence argument or else risk subjecting him to double
jeopardy at a new trial upon remand. People v. Bovio, 118 Ill. App. 3d 836, 843 (1983). A
judgment of conviction will not be reversed unless the evidence is so unsatisfactory or
improbable that a reasonable doubt as to the guilt of the defendant remains. Id. As we stated
earlier, the State’s case rested on the credibility of its witnesses along with the weight to be
placed upon the surveillance video of the defendant’s October 8 interaction with Vicki. Vicki
testified to the events of October 4 and October 8, 2010, stating that the defendant verbally
threatened her, yelled obscenities at her, and menacingly pounded on the glass window of her
kiosk. The October 8 surveillance video recorded her interaction with the defendant, and
Officer Conley testified that the defendant admitted calling Vicki a “bitch” on October 4. If
an uncontaminated jury finds the State’s witnesses to be credible, the evidence would be
sufficient to prove the defendant guilty of stalking beyond a reasonable doubt. Id. (“it is
within the province of the jury to determine the credibility of witnesses”).
¶ 40 Having concluded that the erroneous admission of other-crimes evidence warrants a new
trial in this case, we need not address the defendant’s remaining argument pertaining to
Rule 431(b).
¶ 41 Based on the foregoing reasons, we reverse the judgment of the circuit court of Cook
County and remand the cause for a new trial.
¶ 42 Reversed and remanded.
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