People v. Foreman , 2019 IL App (3d) 160334 ( 2019 )

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Appellate Court Date: 2019.08.07
08:46:13 -05'00'
People v. Foreman, 2019 IL App (3d) 160334
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption TIMOTHY DEWAYNE FOREMAN, Defendant-Appellant.
District & No. Third District
Docket No. 3-16-0334
Filed April 5, 2019
Decision Under Appeal from the Circuit Court of Peoria County, No. 12-CF-911; the
Review Hon. David A. Brown, Judge, presiding.
Judgment Affirmed in part and vacated in part.
Cause remanded.
Counsel on James E. Chadd, Peter A. Carusona, and Bryon Kohut, of State
Appeal Appellate Defender’s Office, of Ottawa, for appellant.
Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino, David J.
Robinson, and Mark A. Austill, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices Holdridge and O’Brien concurred in the judgment and
opinion.
OPINION
¶1 After a jury trial, defendant, Timothy Dewayne Foreman, was convicted of unlawful
possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West
2012)) and was sentenced to 9½ years in prison. Defendant appeals his conviction and
sentence, arguing that the trial court erred in (1) admitting certain other-crimes evidence at
defendant’s trial and (2) sentencing defendant as a Class X offender. We affirm defendant’s
conviction, vacate his sentence, and remand this case for a new sentencing hearing.
¶2 I. BACKGROUND
¶3 In August 2012, defendant was arrested and charged with two drug offenses—unlawful
possession of a controlled substance with intent to deliver, a Class 1 felony (1 gram or more
but less than 15 grams of cocaine), and unlawful possession of a controlled substance, a Class
4 felony (less than 15 grams of cocaine). The charges stemmed from the execution of a search
warrant at the residence where defendant and a person named Tinique Henderson were living.
During the pretrial stage of the case, the State filed a motion in limine, seeking to admit
evidence of defendant’s prior or subsequent drug offenses as proof of defendant’s intent to
deliver the substance in the present case, his knowledge and familiarity with controlled
substances, his continued course of criminal conduct, and his lack of mistake. 1 The prior or
subsequent drug offenses involved were Peoria case Nos. 00-CF-866, 00-CF-949, 08-CF-353, 2
and 13-CF-861.
¶4 In its written motion, the State presented a detailed synopsis of the facts of each of the
other-crimes cases (other cases). The State represented that in case No. 00-CF-866, defendant
was arrested at the Shop Rite store in Peoria for driving while license suspended and was found
to have 5 bags of suspected cannabis and 10 bags of suspected cocaine in his coat pocket. The
offenses occurred in September 2000. Five of the bags of suspected cocaine were analyzed by
a forensic chemist and were found to contain cocaine with a weight of 1.7 grams. The
remaining five bags of suspected cocaine were not tested and had a weight of 1.9 grams. The
case was eventually dismissed in August 2001 pursuant to defendant’s plea of guilty in case
No. 00-CF-949. In case No. 00-CF-949, defendant was arrested and convicted of unlawful
delivery of a controlled substance after he sold 0.2 grams of cocaine to an undercover police
officer. The offense occurred in June 2000. Defendant pled guilty to the offense in August
2001 and was sentenced to three years in prison. In case No. 08-CF-353, defendant was a
backseat passenger in a vehicle that had been stopped by police. Upon searching the vehicle, a
police officer found 18 bags of suspected cocaine inside a larger bag on the rear passenger
floorboard directly below where defendant had been seated. One of the inner bags contained a
large amount of suspected cocaine and the remaining 17 inner bags each contained a small
amount of suspected cocaine. The offense occurred in March 2008. The bag containing the
large amount of suspected cocaine was analyzed by a forensic chemist and was found to
1
The State actually filed two separate motions in limine. For the purpose of simplicity, we will refer
to them as a single motion here.
2
This case is listed as case No. 08-CF-352 at some points in the record and as case No. 08-CF-353
at other points in the record. For the purpose of consistency, we will refer to it as case No. 08-CF-353
throughout our decision in this case.
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contain cocaine with a weight of 6.8 grams. The remaining 17 bags containing smaller amounts
of suspected cocaine were not tested and had a total gross weight of 6.2 grams (including the
packaging). The case was dismissed in July 2008, pursuant to defendant’s plea of guilty in case
No. 07-CF-661. In case No. 13-CF-861, defendant was arrested on an outstanding warrant and
was found to have a bag containing 3.2 grams of cocaine in his pants pocket. The offense
occurred in September 2013.
¶5 Defendant opposed the State’s motion in limine, arguing that the prejudicial impact of the
other-crimes evidence substantially outweighed its probative value because the other offenses
had happened too long ago, did not involve intent to deliver, and/or did not involve criminal
charges of which defendant had been convicted.
¶6 In May 2015, a hearing was held on the State’s motion in limine. During the course of the
hearing, the trial court listened to the parties’ oral arguments and asked the parties numerous
questions. 3 The trial court asked the State how it anticipated proving intent to deliver. The
prosecutor responded that several of the typical indications of intent to deliver were present in
the instant case. The prosecutor told the trial court that two search warrants were issued in the
present case, that substances were found in both a residence and a vehicle, that individual
packaging was involved, that packaging materials were found in the residence, and that the
weight of the substances involved might or might not be indicative of intent to deliver. The
trial court asked defendant whether he anticipated contesting the issue of intent to deliver at
trial. Defendant responded affirmatively and indicated, when asked, that he did not believe that
the quantities of the substances involved in this case or the other facts mentioned were
indicative of intent to deliver. The trial court asked the prosecutor what the factual similarity
was between the 2013 case and the current case (the prosecutor had already discussed the
factual similarity of the other cases), and the prosecutor gave the trial court a brief rendition as
to the similarity. During that rendition, the trial court asked the prosecutor additional questions
as to whether defendant had been charged or convicted in each of the other cases and how the
prosecutor intended to prove the facts of the other cases. The prosecutor indicated that she
would present witnesses for those cases that did not result in a conviction and would present
certified copies of conviction for those cases that did result in a conviction. The trial court
asked defendant if he anticipated raising a defense of mistake or lack of knowledge at his trial,
and defendant responded affirmatively.
¶7 At the conclusion of the hearing, the trial court granted the State’s motion in limine in part
and denied the State’s motion in part, discussing each of the other cases in turn. As for case
No. 00-CF-866, the trial court ruled that the State could introduce evidence of the 10 bags of
cocaine that were recovered. The trial court stated further, however, “[t]he cannabis I don’t
think is relevant unless something else were to come up, but they [(the State)] could use that
offense, the facts of that circumstance to show intent to deliver.” With regard to case No. 08-
CF-353, the trial court found that the evidence in that case was consistent with a pattern of
having multiple bags or multiple divided amounts of cocaine for distribution or sale. The trial
court stated that it would allow evidence of that offense to be admitted for the purpose of
proving intent to deliver. The trial court found further, however, that the prejudicial effect of
the other two incidents, case Nos. 00-CF-949 and 13-CF-861, substantially outweighed the
Defendant represented himself at some points in this case and was represented by counsel at other
3
times in this case.
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probative value, but ruled that if defendant claimed that he had no knowledge of or experience
with cocaine, the State would be allowed to introduce evidence from those two incidents to
rebut defendant’s claim in that regard.
¶8 Shortly before the start of defendant’s first trial in this case, defendant asked the trial court
a question about the State’s ability to introduce the other-crimes evidence. A conversation
ensued that indicated that the trial court’s ruling on the other-crimes evidence may have been
broader than initially suggested. The pertinent part of that conversation was as follows:
“THE DEFENDANT: One of the—at the motion hearing she [the prosecutor]
wasn’t allowed to use the—she was allowed to bring those cases in if I was choosing
to use my defense as if I didn’t know the knowledge—basis of cocaine. That was the
only reason that she would be allowed to bring those cases in is what—
THE COURT: No. At the time of that hearing you indicated that you were
contesting everything with regard to the charges including whether the amount was
with intent to deliver and whether you had any knowledge of it and the like. And as a
result, I said that she could present those, all right?
THE DEFENDANT: You—
THE COURT: That was the ruling. Now leading up to trial you haven’t changed
your position as far as I know on the record, and as a result, she’s preparing for trial
appropriately.
I mean if you after the State’s case in chief—you know, she can’t anticipate your
change in trial strategy so she’s preparing accordingly.
***
THE DEFENDANT: The only thing I’m confused on, [Y]our Honor, is the fact
with the situation on the cases for lack of mistake. That’s where I’m confused at with
the ruling.
Like if I tell the jury I know what crack cocaine is, I—I know what it is, then she’s
gonna be allowed to use it or is she automatically gonna be allowed to use it? That’s
what I’m confused on.
THE COURT: Let me ask, Ms. [Prosecutor], what’s the—I understand you don’t
have to disclose your intent necessarily or your trial strategy, but what—what would
be the intent of the State with regard to those other bad acts I’ll say?
[THE PROSECUTOR]: Your Honor, as the State is required to prove that the
defendant knowingly possessed the substance in this case with the intent to deliver, his
prior bad acts are admissible to show that he does have a prior knowledge of cocaine,
a prior knowledge and prior history with the drug. That it goes to what his intent was
when he possessed these drugs based upon what has occurred in the past.
Again, the Court has found that based upon the similarity of the packaging and the
amounts of drugs that were in these two particular cases, that they met the standard
under Perkins [(United States v. Perkins, 548 F.3d 510, 514 (7th Cir. 2008))] so it goes
not only to prove intent, but it also goes to show lack of mistake.
That he’s been involved with drugs and has quite a history of involvement with
drugs and that it’s not likely that this is just a mistake.
THE COURT: All right. So—
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[THE PROSECUTOR]: It’s not whether he knows what cocaine is. It’s his
involvement with the substance and his continued involvement over a course of time.
THE DEFENDANT: Your Honor, my problem with that is I haven’t—I had never
had a chance to put on no evidence. I was never proven to be guilty of these drugs or
how could they present it that I have a—I don’t have a lack of mistake when I was
never proven that these your drugs.
THE COURT: You can—you can certainly argue that.
THE DEFENDANT: Okay.
THE COURT: All right. And—and I’d also say, Mr. Foreman, that if—if, in fact,
you don’t present any claim or defense of lack of knowledge of what cocaine is and
something along those lines, then the jury would be instructed that those prior bad acts
would be used for purposes only of determining whether you had the intent to deliver.”
¶9 Defendant’s jury trial went forward. For the most part, defendant claimed at the first jury
trial that he did not have possession of the substance and that the police had framed him.
Ultimately, the jury was unable to reach a verdict, and a mistrial was declared.
¶ 10 After the first trial was completed, the trial court continued the prior rulings on the various
pretrial motions to the new trial. Defendant provided notice that he would argue at the second
trial that the police had framed him in this case and had planted the drugs on him in case Nos.
00-CF-866 and 08-CF-353. The State filed a motion in limine, seeking to admit evidence of
the offenses charged in case Nos. 00-CF-949 and 13-CF-861 to rebut defendant’s claims that
the police planted the drugs on him. The State also indicated that, pursuant to the trial court’s
earlier ruling, the State would again present evidence regarding the incident that resulted in
case No. 00-CF-866. The trial court later held a hearing on, and granted, the State’s motion. 4
¶ 11 Defendant’s second jury trial in this case was held in December 2015. The trial took three
days to complete. During opening statements, the prosecutor told the jury that the evidence
would show that Peoria police officers executed a search warrant at a residence on the date in
question, that during the search, the officers recovered cocaine and several other items of
evidence that were indicative of drug sales, that defendant’s fingerprint was on one of the items
recovered, and that the fingerprint of Tinique Henderson (the other adult living at the
residence) was on one of the other items recovered. The prosecutor stated further that after all
of the evidence had been presented, she would ask the jury to find defendant guilty of unlawful
possession of a controlled substance with intent to deliver. Defendant told the jury in opening
statement that the evidence would show that he was not present at the residence when the
search warrant was executed, that the police had conducted a shoddy investigation, that
defendant had been singled out for some reason, that some of the police officers were lying,
and that some of the evidence had been fabricated. Defendant also told the jury that the State
was going to present evidence of other incidents, of which defendant had not been proven
guilty, that had nothing to do with the present case. Finally, defendant told the jury that if he
proved his case, he would ask the jury to find him not guilty.
Despite the representations that had been made, defendant did not claim at his second trial that the
4
drugs were planted, and the State did not seek to admit the evidence from case Nos. 00-CF-949 and 13-
CF-861. The State also did not seek to admit the evidence from case No. 08-CF-353.
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¶ 12 After the opening statements had concluded, the trial moved into the evidence phase.
Numerous witnesses testified, including several officers who participated in the execution of
the search warrant (some of the officers testified in the State’s case and some testified in
defendant’s case), the officer who examined the items recovered for fingerprints, the officer
who verified the fingerprints that were found, and the forensic chemist who analyzed some of
the items recovered. The testimony of those witnesses established the following. On August 8,
2012, several Peoria police officers executed a search warrant at a residence located at 1015
East Republic Street in Peoria, Illinois, where defendant and Tinique Henderson were living.
Henderson was present at the residence at the time. Officers searched the residence and found
under the bed in the southwest bedroom a working digital scale, an open box containing a
mixture of whole plastic bags and torn-off plastic bags (bags that had both corners torn off),
and a plate that had cocaine residue on it. Officers also found in the same bedroom the
defendant’s state identification card in a cabinet, a douche box containing a possible look-a-
like substance, and $700 in bundled currency in a drawer. The currency consisted of thirty-
four $20 bills, one $10 bill, and two $5 bills. In a closet that connected both the southwest and
northwest bedrooms, the police officers found a bag containing an off-white rocky substance
that appeared to be cocaine. The bag was located in the pocket of a toddler’s jacket that had
been hung up in the closet. The substance found in the jacket was later determined by forensic
analysis to contain cocaine and to have a weight of 3.1 grams. An additional amount of
currency, $230, was subsequently recovered from defendant’s person. The currency consisted
of two $50 bills, four $20 bills, four $5 bills, and thirty $1 bills. Defendant’s fingerprint was
found on one of the torn-off bags, and Tinique Henderson’s fingerprint was found on the
douche box. A partial fingerprint was found on the plate, and defendant could not be eliminated
as the person who had left that fingerprint. A police officer, who testified as an expert in drug
sales, opined extensively that the items recovered, including the denominations of currency
and the cocaine in the toddler’s jacket, were indicative of drug sales, rather than merely drug
possession, and explained the reason for his opinion in that regard. Another officer also
described during his testimony the relationship between some of the items recovered and the
sale of drugs. The cocaine and the other items that were recovered were admitted into evidence,
along with the fingerprints and a video recording, which had been played for the jury, showing
the collection of the evidence in the residence during the search.
¶ 13 As for the other-crimes evidence, Peoria police detective Steven Garner testified for the
State about the incident that gave rise to case No. 00-CF-866. Garner stated that on September
23, 2000, he arrested defendant in the Shop Rite store in Peoria for driving while license
suspended. Defendant struggled with Garner as Garner tried to place defendant under arrest.
After handcuffing defendant, Garner found in defendant’s coat pocket 5 individually wrapped
bags of marijuana and 10 individually wrapped bags of cocaine. There were other people
present in the store at the time, and defendant shouted out that the marijuana was his but that
Garner had placed the crack cocaine on him. Charges were filed regarding the incident, but
defendant was never convicted of those charges. Instead, the case was dismissed, based upon
an agreement that had been made. There was a video recording of the incident, but the
recording had been disposed of after the case was dismissed. According to Garner, the video
was consistent with his testimony. The substances that Garner recovered were later analyzed
by a forensic chemist. The chemist tested the substance in five of the bags of suspected cocaine
and found that the substance contained cocaine with a weight of 1.7 grams. The remaining five
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bags of suspected cocaine were not tested and had a total gross weight of 1.9 grams. The
chemist also tested the substance in all five bags of the suspected cannabis and found that the
substance contained cannabis with a weight of 11.9 grams. At the time of Garner’s testimony,
defendant declined to have the jury given a limiting instruction as to its consideration of the
other-crimes evidence.
¶ 14 During his case-in-chief, defendant called Officer Todd Leach to the witness stand. Leach
had not previously been called to testify by the State. Leach was the officer who had actually
found the defendant’s state identification card in the southwest bedroom and also served as the
video officer during the execution of the search warrant. During Leach’s testimony, defendant
played a portion of the video recording from the search. Although not quite clear from the
record, apparently the portion of the video recording that defendant played had not been
previously played for the jury. In the portion of the video recording played by defendant, an
officer searched a Chevrolet Tahoe at the police station. Prior to that time in the trial, no
evidence had been presented regarding the existence or search of the Tahoe or any items
recovered from the Tahoe. Defendant pointed out with his questions that the officer searching
the vehicle could be seen in the video putting gloves on, even though the officer was already
inside the vehicle and the center console compartment was already open. Defendant was
apparently trying to advance his claim of a shoddy investigation by suggesting to the jury that
the officer had searched the interior of the vehicle without wearing gloves. Defendant also
elicited from Leach that the vehicle had been located on North Street and that it had been driven
to the police station by a police officer so that a search could be conducted.
¶ 15 On cross-examination, the State elicited from Leach that the Tahoe was searched pursuant
to a search warrant, that the vehicle was located on North Street, that defendant was arrested
on North Street, that the search of the vehicle took place a few hours after the search of the
residence, that defendant had been taken into custody prior to the execution of the search
warrant on the vehicle, and that the officer who searched the interior of the vehicle was wearing
gloves when he recovered 28 individually wrapped rocks of suspected cocaine from the center
console of the vehicle. The State played the remainder of the video recording for the jury. The
video recording showed the police recovering 28 individual bags of cocaine from the center
console of the Tahoe.
¶ 16 On redirect examination by defendant, Leach testified further that he did not know whether
the officer who had searched the vehicle had gloves on prior to doing so, that he did not know
who located the vehicle on North Street or who took defendant into custody, and that he did
not know what time defendant was taken into custody. Upon being asked where defendant was
taken into custody on North Street, Leach responded that it was at the probation office. 5 Leach
confirmed that he had never seen defendant driving the Tahoe. When defendant asked Leach
where the keys to the Tahoe had come from, Leach responded that the video stated that the
keys came from defendant.
¶ 17 Defendant also called Tinique Henderson to the witness stand. Henderson testified that the
cocaine found in the residence was hers, that she told the police when the search occurred that
the cocaine in the residence was hers for personal use, and that she showed the police where
the cocaine was located in the residence. According to Henderson, defendant moved in with
5
Later testimony indicated that defendant was actually taken into custody at the office of his parole
officer.
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her at the residence in July 2012 because he had no place else to go. Defendant slept on the
couch and his belongings were stored in the basement. Defendant did not have a job but said
that he could help bring food into the house with his Link card. Henderson had recently
received her last work paycheck and kept currency in her bedroom. During the search, the
officers found a traffic ticket and asked Henderson about the Tahoe. Henderson told the
officers that the car belonged to her ex-boyfriend, Melvin Timothy, and was registered to him.
Henderson gave the keys to the Tahoe to the police and showed the police where the vehicle
was parked on Nowland Street at the house of the mother of Timothy’s child. Some of the
cocaine at the residence belonged to Timothy. Henderson never saw defendant in possession
of the drugs found in the residence, the two were not in a relationship, and defendant did not
own a vehicle or have large sums of money. On the morning of the search, Henderson took
defendant to see his parole officer on North Street and dropped him off. The search of the
residence took place after Henderson returned. In November 2015, Henderson pled guilty to
possession of a controlled substance with intent to deliver relating to the cocaine that was found
in the residence during the search.
¶ 18 On cross-examination, Henderson admitted that defendant was the father of Henderson’s
youngest child. Henderson denied telling the police that there was nothing illegal in the house
and also denied telling the police that defendant had taken the Tahoe that morning to see his
parole officer. Henderson acknowledged that she had listened to a phone call between her and
defendant, in which they discussed the facts of the case, and the State admitted and published
a telephone conversation in which defendant told Henderson to “stay low” and that if he was
acquitted, he could testify to anything he wanted at her trial.
¶ 19 On redirect examination, Henderson stated that defendant was trying to protect her and that
she felt bad because defendant was in jail for something she had done.
¶ 20 Peoria police captain Loren Marion III testified in rebuttal for the State that he and Officer
Matthew Lane had interviewed Henderson on the date of the search of the residence.
Henderson told the officers that nothing illegal would be found in the house, that nothing illegal
in the house was hers, and that defendant had driven the Tahoe that morning to meet his parole
officer. Officer Lane located the Tahoe on North Street about one block from the parole office,
and defendant was arrested in the parole office. The trial court admonished the jury that the
line of questioning was for the purpose of impeachment of Henderson’s testimony only.
¶ 21 Peoria police officer Clint Rezac testified in rebuttal for the State that 28 small, knotted
bags of crack cocaine were recovered from the center console of the Tahoe. The substance
field tested positive and was later analyzed by a forensic chemist. The chemist tested the
substance found in 9 of the bags and determined that the substance contained cocaine with a
weight of 2.3 grams. The other 19 bags were not tested and had a total gross weight of 4.9
grams. The trial court admonished the jury that the two charges against defendant in the instant
case were not for the substance found in the Tahoe and that defendant’s involvement in crimes
not charged could only be considered by the jury for the limited purpose of showing
defendant’s intent and/or knowledge.
¶ 22 After the presentation of the evidence had been concluded, the parties gave their closing
arguments. During the summation portion of its closing argument, the State did not refer to the
other-crimes evidence. Defendant, on the other hand, mentioned the other-crimes evidence
several times during the course of his closing argument. In the rebuttal portion of its closing
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argument, the State referred to the other-crimes evidence briefly and told the jury the purpose
of that evidence was to show defendant’s intent to deliver.
¶ 23 After all of the evidence had been presented and closing arguments had been made, the
trial court instructed the jury on the law. Among other things, the trial court told the jury, over
defendant’s objection, that the jury could consider evidence of defendant’s other crimes on the
issue of defendant’s intent or knowledge and that the other-crimes evidence could be
considered only for that limited purpose (see Illinois Pattern Jury Instructions, Criminal, No.
3.14 (approved Oct. 17, 2014)). The jury ultimately found defendant guilty of possession of a
controlled substance with intent to deliver. After the trial court entered the verdict, it ordered
a presentence investigation report (PSI) and continued the case for a sentencing hearing.
¶ 24 Defendant filed a motion for new trial. In the motion, defendant asserted, among other
things, that the trial court erred in allowing the State to present the other-crimes evidence.
Following a hearing, the trial court denied the motion.
¶ 25 Defendant’s PSI showed that defendant was convicted of, among other things, delivery of
a controlled substance in 2000, a Class 2 felony, and driving while license revoked (DWLR)
in 2009, a Class 2 felony. 6 The State argued that defendant was subject to mandatory Class X
sentencing under section 5-4.5-95(b) of the Unified Code of Corrections (Unified Code) (730
ILCS 5/5-4.5-95(b) (West 2012)), and defendant disagreed. The trial court sentenced defendant
to 9½ years in prison as a Class X offender pursuant to section 5-4.5-95(b). Defendant filed a
motion to reconsider and argued that the sentence was excessive. The trial court denied the
motion to reconsider, and defendant appealed.
¶ 26 II. ANALYSIS
¶ 27 A. Other-Crimes Evidence
¶ 28 As his first point of contention on appeal, defendant argues that the trial court erred in
admitting the other-crimes evidence at defendant’s trial. Defendant asserts that the other-
crimes evidence should not have been admitted because the prejudicial effect of the other-
crimes evidence substantially outweighed its probative value. In support of that assertion,
defendant contends that (1) the other-crimes evidence lacked probative value because
defendant was only contesting at trial whether he possessed the cocaine—not whether the
person who possessed the cocaine had the intent to deliver it—and because intent to deliver
was already overwhelmingly established without the other-crimes evidence being presented
and (2) the admission of the other-crimes evidence was highly prejudicial because it resulted
in an improper mini-trial being conducted on the other offenses at defendant’s trial, because
the State introduced evidence of defendant’s other-crimes cannabis possession in violation of
the trial court’s ruling on the motion in limine, because the other-crimes evidence served only
to show defendant’s propensity to commit drug crimes, and because the trial court incorrectly
instructed the jury that it could consider the other-crimes evidence for both intent to deliver
6
Defendant was actually convicted of two DWLR offenses in 2009. Both of the offenses were Class
2 felonies, and both occurred within a short time period in May 2009. Since the second May 2009
DWLR offense could not have been committed after defendant was convicted on the first May 2009
DWLR offense, only one of the offenses could potentially be a qualifying offense under section 5-4.5-
95(b) of the Unified Code of Corrections. See 730 ILCS 5/5-4.5-95(b) (West 2012). For the purpose of
simplicity, therefore, we will refer only to a single 2009 DWLR conviction.
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and knowledge, rather than merely for intent to deliver as the trial court had previously ruled.
For all of the reasons stated, defendant asks that we reverse his conviction for unlawful
possession of a controlled substance with intent to deliver and that we remand this case for a
new trial.
¶ 29 The State argues that the trial court’s ruling on the admissibility of the other-crimes
evidence was proper and should be upheld. In response to defendant’s specific assertions, the
State contends that the trial court’s ruling was appropriate because (1) the State was required
to prove intent to deliver beyond a reasonable doubt as an element of the offense, regardless
of defendant’s trial strategy, and was required to do so even if defendant was not contesting
the proof as to that element of the offense, (2) the State did not violate the trial court’s ruling
on the motion in limine by introducing evidence of defendant’s 2000 cannabis possession,
(3) the admission of the other-crimes evidence did not result in an improper mini-trial being
conducted during defendant’s trial, and (4) any resulting prejudice was reduced since the trial
court repeatedly instructed the jury that it could consider the other-crimes evidence only for
defendant’s intent and knowledge to deliver the substance in the instant case. In the alternative,
the State contends that any error that occurred in the admission of the other-crimes evidence
was harmless. For all of the reasons set forth, the State asks that we affirm defendant’s
conviction.
¶ 30 A determination of the admissibility of evidence is in the sound discretion of the trial court
and will not be reversed on appeal absent an abuse of discretion. People v. Pikes, 2013 IL
115171, ¶ 12; People v. Illgen, 145 Ill. 2d 353, 364 (1991). Under the abuse of discretion
standard, the appellate court owes some deference to the trial court’s ability to evaluate the
evidence’s impact on the jury. People v. Donoho, 204 Ill. 2d 159, 186 (2003). The threshold
for finding an abuse of discretion is a high one and will not be overcome unless it can be said
that the trial court’s ruling was arbitrary, fanciful, or unreasonable, or that no reasonable person
would have taken the view adopted by the trial court. See In re Leona W., 228 Ill. 2d 439, 460
(2008); Donoho, 204 Ill. 2d at 182. Reasonable minds can disagree about whether certain
evidence is admissible without requiring a reversal of a trial court’s evidentiary ruling under
the abuse of discretion standard. Donoho, 204 Ill. 2d at 186.
¶ 31 It is well established under Illinois law that evidence of other crimes is not admissible to
show a defendant’s propensity or disposition to commit crimes. Id. at 170; Ill. R. Evid. 404(b)
(eff. Jan. 1, 2011). Other-crimes evidence is objectionable not because it has too little probative
value but because it has too much—it could overpersuade a jury to convict a defendant merely
because the jury feels that the defendant is a bad person who deserves to be punished. People
v. Manning, 182 Ill. 2d 193, 213-14 (1998). However, other-crimes evidence may be admitted,
in the discretion of the trial court, when such evidence is relevant for any other material
purpose, such as to show motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake or accident, modus operandi, or the existence of a common plan or design.
Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); Pikes, 2013 IL 115171, ¶ 11; see also Michael H.
Graham, Graham’s Handbook of Illinois Evidence § 404.5, at 241-71 (10th ed. 2010); 2 John
H. Wigmore, Evidence in Trials at Common Law §§ 301 to 307 (Chadbourn rev. 1979). When
evidence of other crimes is offered, the trial court must weigh the probative value of the
evidence against the prejudicial effect and should exclude the evidence, even if the evidence
is relevant, if the prejudicial effect substantially outweighs the probative value. Pikes, 2013 IL
115171, ¶ 11; Manning, 182 Ill. 2d at 214; Ill. R. Evid. 403 (eff. Jan. 1, 2011). The erroneous
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admission of other-crimes evidence carries a high risk of prejudice and will ordinarily require
a reversal. People v. Cortes, 181 Ill. 2d 249, 285 (1998). Nevertheless, for a reversal to be
warranted, the erroneously admitted evidence must have been a material factor in the
defendant’s conviction, such that without the erroneously admitted evidence, the verdict likely
would have been different. Id. If the error was unlikely to have influenced the jury, the
erroneous admission of other-crimes evidence will not warrant reversal. Id.
¶ 32 Having reviewed the record in the present case and the law on this issue, we find that the
trial court did not commit an abuse of discretion in admitting the other-crimes evidence as
some evidence of defendant’s intent to deliver the cocaine in the instant case. See Pikes, 2013
IL 115171, ¶ 12; Illgen, 145 Ill. 2d at 364; Leona W., 228 Ill. 2d at 460; Donoho, 204 Ill. 2d at
182. We reach that conclusion for three reasons. First, contrary to defendant’s assertion on
appeal, the other-crimes evidence had substantial probative value. One of the offenses that
defendant was charged with in the instant case was possession of a controlled substance with
intent to deliver. Intent to deliver, therefore, was an element of the offense, and the State was
required to prove that element beyond a reasonable doubt. See People v. Phillips, 215 Ill. 2d
554, 574 (2005). As is often the case where a defendant’s intent has to be proven, the evidence
of defendant’s intent to deliver as to the current charge was entirely circumstantial. See People
v. Rudd, 2012 IL App (5th) 100528, ¶ 14 (recognizing that circumstantial evidence is often the
only way to prove a defendant’s intent to commit a theft or other crime). The other-crimes
evidence was a highly probative piece of circumstantial evidence on that issue. Although
defendant claims that the probative value of the other-crimes evidence was lacking in this case
because he was not contesting intent to deliver, defendant did not stipulate or concede that
issue in front of the jury. See People v. Watkins, 2015 IL App (3d) 120882, ¶ 49; People v.
Wilson, 214 Ill. 2d 127, 138 (2005) (“[a] defendant may not use ambiguity by denying
commission of the act that comprises the offense, thereby seeking to bar other-crimes evidence,
while at the same time leaving room to argue lack of intent to the jury”); People v. Davis, 248
Ill. App. 3d 886, 892 (1993) (“[a]lthough a defendant cannot foreclose the prosecution from
producing evidence of intent or motive through other crimes evidence simply by not presenting
evidence or argument regarding intent or motive, the trial court may consider whether the
defendant is making an issue of intent or motive when deciding whether to admit other crimes
evidence”). Furthermore, while it is true that several of the common indications of drug
delivery were present in the instant case, the trial court was faced with the difficult decision of
having to determine in advance how much evidence of intent to deliver was enough—and not
too much—for the State to present. We will not find in hindsight—and with the benefit of now
knowing exactly what would be presented at defendant’s trial—that the trial court’s
determination in that regard constituted an abuse of discretion under the circumstances of the
present case. See Illgen, 145 Ill. 2d at 371 (stating that a reviewing court may not simply
substitute its judgment for that of the trial court on a matter within the trial court’s discretion).
¶ 33 Second, as we noted in our prior decision in Watkins, other-crimes evidence, such as prior
drug sales, may be admitted in a drug case involving delivery or possession with intent to
deliver as proof of defendant’s intent or for any other relevant and permissible purpose.
Watkins, 2015 IL App (3d) 120882, ¶ 46. Indeed, the Illinois Rules of Evidence specifically
allow other-crimes evidence to be admitted for the purpose of showing intent (Ill. R. Evid.
404(b) (eff. Jan. 1, 2011)), and Illinois courts have routinely allowed other-crimes evidence to
be admitted for that purpose or for any other relevant and permissible nonpropensity purpose
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in drug cases involving delivery or possession with intent to deliver (see Watkins, 2015 IL App
(3d) 120882, ¶ 46 (collecting cases)). The facts of Watkins and of People v. Moser, 356 Ill.
App. 3d 900 (2005), are very similar to the facts of the present case. In both of those cases, the
appellate court found that the other-crimes evidence was properly admitted. See Watkins, 2015
IL App (3d) 120882, ¶¶ 46-50 (in a case in which the defendant was charged with unlawful
possession of a controlled substance with intent to deliver for cocaine that was found in the
common area of a residence where defendant was staying after a search warrant was executed
at the residence, this court found that the trial court properly admitted evidence of the
defendant’s prior conviction for unlawful possession of cannabis with intent to deliver as some
evidence of defendant’s intent to deliver the substance in the current case); Moser, 356 Ill.
App. 3d at 913 (in a case in which the defendant was charged with unlawful possession of a
controlled substance with intent to deliver for cocaine that was found in a nightstand and under
the bed in the master bedroom where the defendant’s wife was located during the execution of
a search warrant at the residence, the appellate court found that the testimony that the police
informant had purchased cocaine from the defendant approximately 15 times was properly
admitted to show that defendant knowingly possessed the cocaine inside the residence).
¶ 34 Third and finally, under the circumstances of the present case, we are unable to conclude
that the trial court’s determination—that the probative value of the other-crimes evidence was
not substantially outweighed by the prejudicial effect—was erroneous under an abuse of
discretion standard of review. See Illgen, 145 Ill. 2d at 375 (applying an abuse of discretion
standard of review to the trial court’s determination of whether the probative value of other-
crimes evidence is substantially outweighed by its prejudicial effect); see also Ill. R. Evid. 403
(eff. Jan. 1, 2011) (stating that relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice). Nor do we find anything in the
trial court’s ruling or in the manner in which the trial court made its decision that would suggest
that the trial court’s ruling was arbitrary, fanciful, or unreasonable. See Leona W., 228 Ill. 2d
at 460; Donoho, 204 Ill. 2d at 182.
¶ 35 To the contrary, the record shows that the trial court carefully considered this matter and
extensively questioned the parties during the hearing on the State’s motion in limine to make
sure that the court understood all of the important facts necessary for the court to make its
decision. Furthermore, the trial court carefully exercised its discretion and allowed the State to
introduce some of the evidence that it sought to admit while prohibiting the State from
introducing other portions of the other-crimes evidence. The trial court also took care to
minimize the prejudice to defendant by giving the jury a limiting instruction that the other-
crimes evidence could only be considered for the limited purpose of showing defendant’s intent
and/or knowledge as to the current offense. See Illgen, 145 Ill. 2d at 376 (indicating that the
trial court’s giving of a limiting instruction regarding the jury’s consideration of the other-
crimes evidence limited and substantially reduced any prejudicial effect created by the
admission of the other-crimes evidence). The limiting instruction was given when the evidence
regarding the Tahoe was admitted and again when the trial court instructed the jury prior to
deliberations. The trial court did not give a limiting instruction when Detective Garner testified
because defendant had requested that an instruction not be given. Although there is some
uncertainty in the record regarding the parameters of the trial court’s other-crimes ruling, even
if the trial court incorrectly instructed the jury that it could consider the other-crimes evidence
as to both knowledge and intent, rather than as to intent only, any such possible error would
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not require a reversal in this case. See People v. Spyres, 359 Ill. App. 3d 1108, 1113-14 (2005)
(recognizing that other-crimes evidence that is admissible for one reason is not affected by the
inadmissibility of that evidence for another reason and that giving an overbroad limiting
instruction on other-crimes evidence does not require a reversal).
¶ 36 In addition, contrary to defendant’s assertion on appeal, the evidence presented to the jury
to establish that the other crimes had occurred was not extensive and was not equivalent to a
mini-trial being held before the jury on the other offenses. See People v. McKibbins, 96 Ill. 2d
176, 186-87 (1983) (the supreme court advised against conducting a mini-trial on the prior
offense at the current trial). The initial introduction of the other-crimes evidence required only
one additional witness, Detective Garner, to testify for the State. Although a forensic chemist
also testified as to the analysis of the drugs that Detective Garner recovered from defendant,
that chemist was the same chemist who had testified for the State about the analysis of the
substances that were recovered from the residence during the execution of the search warrant.
¶ 37 With regard to the evidence presented about the bags of cannabis recovered by Detective
Garner, we cannot say that the State ran afoul of the trial court’s ruling on the motion in limine.
The trial court’s statement about the admissibility of the cannabis is somewhat ambiguous, and
we cannot determine from the record that has been presented whether defendant’s or the State’s
interpretation of the trial court’s ruling on the cannabis is correct.
¶ 38 As for the evidence on the search of the Tahoe and the substances recovered from the
Tahoe, defendant cannot complain on appeal about that evidence, since it was defendant—and
not the State—who first placed the search of the Tahoe before the jury. See People v. Reeves,
385 Ill. App. 3d 716, 731 (2008) (recognizing that a defendant cannot complain where evidence
of his past misconduct was not offered to show propensity but, rather, was invited by his own
trial tactics). It was permissible, therefore, for the State to present additional evidence on
rebuttal to clarify the evidence defendant had placed before the jury on the police search of the
Tahoe. See id.
¶ 39 In sum, we conclude that the trial court did not err in admitting the other-crimes evidence
in this case. In reaching that conclusion, we have reviewed the two main cases cited by
defendant in support of his argument to the contrary—People v. Pitts, 257 Ill. App. 3d 949
(1994), and People v. Chambers, 259 Ill. App. 3d 631 (1994)—and have found those cases to
be neither factually nor legally similar to the present case. See Pitts, 257 Ill. App. 3d at 953 (in
an aggravated criminal sexual assault and home invasion case, the appellate court found that
the trial court erred in allowing the State to introduce the testimony of defendant’s probation
officer to establish defendant’s address for the purpose of proving identity where the defendant
was willing to stipulate to his address, the State already needed the defendant’s building
manager to testify to show that the key found at the victim’s residence fit defendant’s door
lock, the building manager’s testimony would have convincingly proved defendant’s address,
and the only conceivable purpose for presenting the probation officer’s testimony was to advise
the jury of defendant’s criminal past); Chambers, 259 Ill. App. 3d at 634-36 (in a first degree
murder case, the appellate court found that the trial court erred in allowing the State to
introduce lengthy and detailed testimony from the State’s insanity expert regarding defendant’s
prior criminal acts where that evidence had only marginal value to the crux of the disagreement
between the State’s and the defendant’s sanity experts regarding defendant’s sanity at the time
of the offense). Because we find that the trial court’s ruling on the admissibility of the other-
crimes evidence did not constitute an abuse of discretion in this case, we affirm the trial court’s
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ruling on that issue. Having reached that conclusion, we need not address the State’s other
argument in the alternative, that any error that occurred was harmless.
¶ 40 B. Class X Sentencing
¶ 41 As his second point of contention on appeal, defendant argues that the trial court erred in
imposing a Class X sentence on defendant under section 5-4.5-95(b) of the Unified Code.
Defendant asserts as a matter of statutory interpretation that his prior 2009 DWLR conviction
was not a qualifying offense under section 5-4.5-95(b) because (1) the elements of his 2009
DWLR conviction were equivalent to those of a misdemeanor offense and not a Class 2 or
greater felony and (2) the legislature intended that a defendant’s fifteenth or subsequent DWLR
conviction would constitute a Class 2 felony only if the original underlying suspension or
revocation was for one of the three enumerated offenses (leaving the scene of an accident
involving death or personal injury, driving under the influence, or a statutory summary
suspension) and all of the 14 prior DWLR convictions occurred while the defendant was
suspended or revoked for that basis, which are not the facts of the 2009 DWLR conviction.
Defendant asks, therefore, that we vacate his sentence and remand this case for a new
sentencing hearing.
¶ 42 The State argues first that defendant has forfeited his claim of sentencing error by failing
to raise that specific claim in his motion to reconsider sentence. As defendant correctly points
out, however, a sentence that is not statutorily authorized affects a defendant’s substantial
rights and will generally be reviewed, despite any possible forfeiture, under the second prong
of the plain error doctrine. See People v. Mobley, 383 Ill. App. 3d 89, 92 (2008) (the appellate
court reviewed alleged error regarding possible misapplication of the law during sentencing
under the second prong of the plain error doctrine because the alleged error involved a
substantial right). Second, and in the alternative, the State argues that the trial court’s
sentencing decision was proper and should be upheld. The State disagrees with defendant’s
interpretation of the relevant statutes and asserts that defendant’s interpretation is untenable
and not supported by the case law or the legislative history. The State asks, therefore, that we
affirm the trial court’s sentencing decision.
¶ 43 The interpretation of a statute is a question of law that is subject to de novo review on
appeal. People v. Baskerville, 2012 IL 111056, ¶ 18. The fundamental rule of statutory
construction is to ascertain and give effect to the intent of the legislature. Id. The most reliable
indicator of that intent is the plain and ordinary meaning of the language of the statute itself.
Id. In determining the plain meaning of statutory terms, a court should consider the statute in
its entirety and keep in mind the subject the statute addresses and the apparent intent of the
legislature in enacting the statute. Id.; 5 ILCS 70/1.01 (West 2012) (in construing a statute,
“[a]ll general provisions, terms, phrases and expressions shall be liberally construed in order
that the true intent and meaning of the General Assembly may be fully carried out”). If the
statutory language is clear and unambiguous, it must be applied as written, without resorting
to further aids of statutory construction. People v. Dabbs, 239 Ill. 2d 277, 287 (2010). A court
may not depart from the plain language of the statute and read into it exceptions, limitations,
or conditions that are not consistent with the express legislative intent. Baskerville, 2012 IL
111056, ¶ 18. However, if the language of a statute is ambiguous, in that it is susceptible to
more than one reasonable interpretation, a court may consider extrinsic aids to determine the
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meaning of the statutory language. See Williams v. Illinois State Scholarship Comm’n, 139 Ill.
2d 24, 51 (1990).
¶ 44 There are two statutes at issue in the present case—section 5-4.5-95(b) of the Unified Code
and section 6-303(d-5) of the Illinois Vehicle Code (625 ILCS 5/6-303(d-5) (West 2012)).
Section 5-4.5-95(b) of the Unified Code provides that:
“When a defendant, over the age of 21 years, is convicted of a Class 1 or Class 2 felony,
after having twice been convicted in any state or federal court of an offense that
contains the same elements as an offense now (the date the Class 1 or Class 2 felony
was committed) classified in Illinois as a Class 2 or greater Class felony and those
charges are separately brought and tried and arise out of different series of acts, that
defendant shall be sentenced as a Class X offender. This subsection does not apply
unless:
(1) the first felony was committed after February 1, 1978 (the effective date of
Public Act 80-1099);
(2) the second felony was committed after conviction on the first; and
(3) the third felony was committed after conviction on the second.” 730 ILCS
5/5-4.5-95(b) (West 2012).
Under section 5-4.5-95(b), Class X sentencing is mandatory—a trial court must sentence a
defendant as a Class X offender if the defendant has prior qualifying felony convictions that
satisfy the requirements of the statute. See People v. Thomas, 171 Ill. 2d 207, 222 (1996)
(discussing a prior version of the statute).
¶ 45 The second statute at issue in the present case, section 6-303(d-5) of the Illinois Vehicle
Code, provides that:
“Any person convicted of a fifteenth or subsequent violation of this Section is guilty of
a Class 2 felony, and is not eligible for probation or conditional discharge, if the
revocation or suspension was for a violation of Section 11-401 or 11-501 of this Code,
or a similar out-of-state offense, or a similar provision of a local ordinance, or a
statutory summary suspension or revocation under Section 11-501.1 of this Code.” 625
ILCS 5/6-303(d-5) (West 2012).
¶ 46 When we review the two statutes and consider them in light of the competing assertions of
the parties in the present case, we find that defendant’s first assertion is well taken. For the
issue raised in this particular case, the language of section 5-4.5-95(b) of the Unified Code is
clear and unambiguous. The focus is on the elements of the prior offense. See 730 ILCS 5/5-
4.5-95(b) (West 2012). To constitute a qualifying offense under the statute, the prior offense
must contain the same elements as an offense now classified in Illinois as a Class 2 or greater
Class felony. See id. Defendant’s 2009 DWLR conviction in the instant case was elevated from
a misdemeanor offense to a Class 2 felony based, in part, upon defendant’s prior convictions
for DWLR. Our supreme court has found, however, that those prior underlying convictions do
not constitute elements of the offense. See People v. Lucas, 231 Ill. 2d 169, 180-81 (2008)
(finding that the prior convictions that served as the basis for a felony DWLR conviction were
sentencing enhancements and not elements of the offense). Rather, the elements of defendant’s
prior 2009 Class 2 felony DWLR were that defendant was driving upon a highway of this State
and that when he did so, his driver’s license was revoked. See id. at 179-81; 625 ILCS 5/6-
303(a) (West 2008). Those are the elements of a misdemeanor DWLR offense. See Lucas, 231
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Ill. 2d at 179-81. Thus, as defendant asserts, his 2009 DWLR conviction could not be used as
a qualifying offense to make him eligible to be sentenced as a Class X offender under section
5-4.5-95(b) of the Unified Code.
¶ 47 Having reached that conclusion, we need not address defendant’s second assertion—that
his 2009 DWLR conviction should not be treated as a Class 2 felony for the purpose of the
application of section 5-4.5-95(b) of the Unified Code because not all of his 14 (or more) prior
DWLR convictions occurred while defendant’s driver’s license was suspended or revoked for
a violation of one of the three enumerated statutes (leaving the scene of an accident involving
a death or personal injury, DUI, or a summary suspension). We, therefore, vacate defendant’s
sentence and remand this case for defendant to be resentenced as a Class 1 offender. We must
note, however, that while our decision here lowers the minimum prison sentence for which
defendant is eligible from six years down to four years, the maximum prison sentence for which
defendant is eligible would still be 30 years because defendant has a prior conviction under the
Illinois Controlled Substances Act. See 730 ILCS 5/5-4.5-30(a) (West 2012) (indicating that
the sentence of imprisonment for a Class 1 felony, other than second degree murder, shall be
a determinate sentence of not less than 4 years and not more than 15 years); 720 ILCS
570/408(a) (West 2012) (stating that any person convicted of a second or subsequent offense
under the Illinois Controlled Substances Act may be sentenced to a term of imprisonment of
up to twice the maximum term otherwise authorized).
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, we affirm defendant’s conviction, vacate defendant’s sentence,
and remand this case for the trial court to conduct a new sentencing hearing.
¶ 50 Affirmed in part and vacated in part.
¶ 51 Cause remanded.
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