People v. Jacobs , 2016 IL App (1st) 133881 ( 2016 )

2016 IL App (1st) 133881
FOURTH DIVISION
September 29, 2016
No. 1-13-3881
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 2733
)
ERIC JACOBS, ) Honorable
) Joseph G. Kazmierski,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices McBride and Howse concurred in the judgment and opinion.
OPINION
¶1 After being arrested in Chicago while driving a car that had been stolen in Peoria by an
individual named Brian Lamb, defendant Eric Jacobs was convicted of possession of a stolen
motor vehicle (PSMV) and sentenced to nine years’ incarceration. On appeal, he raises several
issues: (1) that the State did not prove beyond a reasonable doubt that he knew the vehicle was
stolen; (2) that the trial court erroneously admitted the testimony of Jason Fox, the son of the
car’s owner, because that testimony included a unreliable identification of defendant and
improper other-crimes evidence; (3) that the trial court denied defendant his right to present a
defense when it excluded evidence that Lamb had been arrested for, and confessed to, the theft of
the vehicle; (4) that the prosecutors trying the case engaged in misconduct by violating the trial
court’s evidentiary rulings and making improper closing arguments; and (5) that the trial court
erred in denying defendant’s request for an instruction on the lesser-included offense of criminal
trespass to a vehicle.
¶2 We agree that the trial court erred in admitting Jason Fox’s testimony to the extent it
contained improper other-crimes evidence. Jason testified that his parents’ home was burglarized
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and that the burglar stole his father’s car and his mother’s jewelry. He then testified that, while
searching local pawn shops for his mother’s jewelry, he saw defendant come out of a pawn shop
and enter his father’s car. That testimony carried with it the clear inference that defendant was
somehow involved with the burglary of the Fox home, a crime for which defendant was not on
trial and with which he could not be linked.
¶3 And the trial court improperly precluded defendant from introducing evidence that
someone else—Brian Lamb—had been arrested for the burglary. Thus, defendant was left unable
to counter the prejudicial effect created by Jason’s testimony. Because of the unfair prejudice
created by this evidence, the trial court abused its discretion in admitting it, and defendant is
entitled to a new trial.
¶4 I. BACKGROUND
¶5 In January 2013, James Fox’s 2005 Kia was stolen from his Peoria, Illinois, home while
he and his wife were on vacation in Florida. Brian Lamb was eventually arrested for the theft
and, according to police reports in the record, confessed to breaking into James’s house. Lamb
also took jewelry during the break-in. On January 20, 2013, police saw defendant driving the Kia
in Chicago and arrested him. The only contested issue at defendant’s trial was whether he knew
that the car was stolen.
¶6 A. Pretrial Proceedings
¶7 Prior to his trial, defendant moved to exclude evidence that Jason Fox, James’s son, had
seen defendant in the car in the parking lot of a Peoria pawn shop on January 19, 2013.
Defendant argued that any in-court or prior identification by Jason would be unreliable because
the police showed Jason a single photograph of defendant, and Jason identified defendant as the
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person he had seen on January 19. Defendant added that no physical lineup or photo array had
been performed.
¶8 At the hearing on defendant’s motion, the State explained that Jason saw a photograph of
defendant at the police station on January 21, 2013, and told the police that the photograph
looked like the person he had seen in his father’s car two days earlier. The State indicated that it
did not plan to introduce any evidence regarding Jason’s identification of the photograph. But,
the State argued, it “may ask him to make an in-court identification,” which the State did not
know if Jason would be able to make. The trial court barred any testimony regarding Jason’s
identification of defendant in the single photograph but did not preclude an in-court
identification.
¶9 After the trial court made its ruling, defense counsel argued that permitting the State “to
ask [Jason] to identify a person who is the only black guy who is sitting at counsel table is
extremely suggestive.” Defense counsel added that, without a prior identification, the in-court
identification would be unreliable. The trial court said that it would not prohibit an attempt at an
in-court identification, stating, “If [the identification] is sketchy, the jury can make that
determination and disregard it if they wish.”
¶ 10 Defendant also moved to exclude “[a]ny mention of other property that was stolen in the
*** burglary of *** Jason Fox’s home” and “[a]ny insinuation that [defendant was] responsible
for the residential burglary of the Fox home.” The trial court granted those requests.
¶ 11 The State moved to exclude testimony, from the police officer who arrested Lamb, that
Lamb had confessed to taking the car. The trial court excluded that testimony, finding that it
would be inadmissible hearsay. Defense counsel asked for permission to introduce testimony that
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the officer had arrested Lamb for the burglary of the Fox home, but the trial court ruled that that
evidence would also be hearsay.
¶ 12 The trial court also permitted the State to introduce, for impeachment purposes, evidence
that defendant had been convicted of residential burglary in 2009.
¶ 13 B. Trial and Posttrial Proceedings
¶ 14 In its opening statement, the State described the burglary of James’s home:
“In January of this year, *** Mr. and Mrs. Fox were in Florida. And while they
were there enjoying their retired life, their home in Peoria, Illinois, was being
burglarized. Because they were out of state, their son Jason responded to the burglary and
when he arrived at their house, he went through the home with the Peoria Police
Department looking to see what, if anything, had been stolen. And Jason and the police
discovered a basement window that had been broken into the home and they noticed that
Mrs. Fox’s jewelry had been stolen as well as the couple’s car, a Kia SUV.
Well, the Foxes assumed that their car was long gone and probably their jewelry
and they would never see these time [sic] again that they worked hard to acquire.”
Defense counsel objected to this statement, but the trial court overruled the objection. The State
then added, “Jason decided he would do his best to see if he could find his mother’s jewelry. And
so he went to different pawn shops in Peoria looking for his mom’s jewelry.” The State said that,
while in the parking lot of a pawn shop, he saw his parents’ car.
¶ 15 James Fox testified that he was 82 years old at the time of the trial and that he lived in
Peoria with his wife. He owned a silver 2005 Kia sport utility vehicle (SUV). In January 2013,
James and his wife went to Florida. James left the Kia in the garage and the keys to the car on the
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kitchen counter. James testified that he had not given defendant, or anyone else, permission to
drive his car while he was gone.
¶ 16 On January 14, 2013, James received word that his house had been burglarized and that
his car had been stolen. When James returned from Florida in March 2013, his car had been
returned to the garage. James did not notice any damage to the car.
¶ 17 Jason Fox testified that, on January 14, 2013, he received a call from his mother and went
to his parents’ house. The police were already in the house. Jason noticed a window to the
basement of the house had been broken and that the Kia was missing from the garage. Jason also
testified that some of his mother’s jewelry had gone missing. Defense counsel objected to the
reference to the jewelry, but the trial court overruled the objection.
¶ 18 Jason testified that, on the afternoon of January 19, 2013, he went to a pawn shop in
Peoria to see if he could find any of his mother’s jewelry. In the parking lot, he noticed a car that
looked like his father’s. Jason got out of his car, walked behind the other car, and saw that the
license plate number matched his father’s car’s license plate number. Jason walked back to his
car and called 911.
¶ 19 Jason testified that he saw a man in the backseat of his father’s car. The man got out of
the Kia and knocked on Jason’s window. Jason held up his hand and said, “I’m on the phone.
One moment.” The man knocked on the window again, and Jason said, “Dude, I’m on the
phone.” The man got back into the Kia.
¶ 20 Jason testified that, after the man knocked on his window, another man and a woman
came out of the pawn shop together. Jason described the man as African-American, standing
between six feet and six feet, two inches tall, with long, curly hair and a medium build. Jason
described the woman as African-American and “stocky” with a fair complexion. The man got
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into the driver’s seat of the Kia, the woman got into the front passenger’s seat, and they drove
away. Jason estimated that he was able to see the man’s face for about 30 seconds before he got
in the car.
¶ 21 The State asked Jason if he saw anyone in court that he had seen in the parking lot of the
pawn shop. Defendant objected to the question, but the court overruled the objection. Jason
identified defendant as the man he saw leave the pawn shop and drive his father’s car away.
¶ 22 Jason testified that the Kia left the parking lot at a speed “higher than the posted speed
limit.” Jason followed the Kia for about four blocks in an area where the speed limit was 30
miles per hour. Jason estimated that, as he followed it, the Kia was traveling about 50 or 55 miles
per hour.
¶ 23 Jason testified that, on January 20, 2013, he learned that his father’s car was recovered in
Chicago. He went to the police station in Chicago, where he saw his father’s car. He did not
notice any damage to the car, but the interior smelled like cigarettes, though neither of his
parents smoked. He testified that the steering column was intact and that the radio was still in the
car. Jason drove the car back to Peoria. Before his parents returned, Jason got the alignment of
the car repaired because he noticed it was pulling to the left.
¶ 24 At a sidebar during Jason’s testimony, defense counsel asked for permission to question
Jason regarding statements the Chicago police made to him that undermined his identification of
defendant. The court denied counsel’s request to question Jason about the circumstances of his
prior identification but permitted counsel to make an offer of proof outside the jury’s presence.
¶ 25 At the offer of proof, Jason testified that, on January 20, 2013, he spoke to Officer Bill
Caro of the Chicago police over the phone. Jason described the people he had seen leaving the
pawn shop, and Caro “said that looks like the same people we have in custody.” Jason also
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testified that, while he was in the reception area of the police station in Chicago, he “saw a
picture of *** defendant.” Jason told Caro that he thought the photograph depicted “the
gentleman [he] saw in Peoria driving [James’s] car.” Jason said that, in response, Caro
“mentioned” defendant’s name. After making the offer of proof, the court asked defense counsel
if she wanted to ask Jason about “the picture he saw at the police station in front of the jury,” but
defense counsel declined.
¶ 26 After Jason finished testifying, defense counsel argued that the State had violated the
ruling on the defense motion in limine by bringing up the jewelry taken from the Fox home both
in its opening statement and through Jason’s testimony. Defense counsel asserted that she should
be able to introduce evidence to rebut any inference that defendant was responsible for the theft
of the jewelry—specifically, evidence that Lamb was the burglar. The court maintained its ruling
precluding defense counsel from eliciting such evidence.
¶ 27 Detective Randall Schweigert of the Peoria police department, 1 who investigated the
burglary of James Fox’s house, testified that he never charged defendant with the burglary and
that he “never charged [defendant] with *** stealing any jewelry from that residence.”
Schweigert also testified that, when Jason described the man he saw at the pawn shop, he simply
described him as a black man; Jason did not describe the man’s hair, height, complexion, or
weight to Schweigert. The court again denied defense counsel’s request to ask Schweigert about
his arrest of Lamb, and defense counsel made the following offer of proof:
“Officer Schweigert if called to testify would testify that he arrested a person in this case
for the residential burglary of the [Foxes’ home], that if shown a picture marked as
Defense Exhibit No. 1 that he would identify that person as Brian Lamb as a person that
1
For scheduling reasons, the defense called Schweigert out of order, while the State’s case-in-
chief remained open.
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he arrested for the residential burglary ***, that after he arrested this person, Brian Lamb,
for the residential burglary that he closed the case.”
¶ 28 On the next day of the trial, defendant moved for a mistrial. Defense counsel argued that,
by introducing evidence of the jewelry taken during the burglary along with evidence that
defendant was at the pawn shop five days later, the State created an “insinuation *** that
[defendant was] responsible for those crimes when he has not been charged.” Defense counsel
added that she had been deprived of the opportunity to rebut that insinuation with evidence
“[t]hat [there was] another person who took sole responsibility for this.”
¶ 29 The State responded that it needed to introduce evidence of the stolen jewelry in order “to
explain why Jason Fox [was] at a pawn shop.” And, the State added, the testimony that the
defense intended to elicit regarding Lamb’s confession would be through a police officer,
making that evidence inadmissible hearsay. The State also noted that Schweigert had testified
that he did not charge defendant with anything relating to the burglary.
¶ 30 The trial court denied the motion for a mistrial. The court noted that defendant was not
charged with anything other than PSMV and that the evidence that defendant was at the pawn
shop was relevant “[t]o show that the car was probably stolen or possibly stolen.”
¶ 31 When the State resumed its case, Officer Caro testified that, on the afternoon of January
20, 2013, he was driving south on Sacramento Boulevard near Roosevelt Road in Chicago.
Caro’s car had “an automatic plate reader,” which automatically scanned the license plates of
passing cars and told Caro if they had been reported stolen. The reader alerted Caro to a Kia
SUV that he passed on Sacramento Boulevard, with the license plate No. 9920777.
¶ 32 Caro sent out a flash message describing the car and relaying the plate number, pulled a
U-turn, and followed the Kia. Caro stayed about two blocks behind the Kia to avoid letting the
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driver know that he was following him. Eventually, Caro got stuck in traffic, and the Kia turned
out of sight. Caro heard a message that another officer had begun to follow the Kia along
Madison Street.
¶ 33 Caro eventually caught up to the Kia again, when he saw two other police cars pull it
over. An officer ordered the driver, whom Caro identified as defendant, out of the car. Defendant
did not try to run after he got out. Caro testified that a black woman was still sitting in the front
passenger’s seat of the Kia.
¶ 34 Caro testified that, while on the side of the road, he asked defendant who owned the car,
and defendant said that “it belonged to a friend of his.” Caro asked defendant his friend’s name,
and defendant replied, “I don’t know.” The prosecutor asked Caro if defendant gave him any
details about his friend, including his name, and Caro said that defendant did not. After the
roadside questioning, Caro arrested defendant and took him to the police station.
¶ 35 At the police station, Caro read defendant his Miranda rights (Miranda v. Arizona, 384
U.S. 436 (1966)). After defendant agreed to speak with him, Caro asked defendant who owned
the car and how he got it. Caro testified, “[Defendant] told me that he rented it from a hype for
$40 so he could drive into Chicago.” Caro testified that the term “hype” was “a street term for a
person who is addicted [to] drugs.” Caro testified that defendant did not give him the name of the
hype and did not say that he rented the car from Lamb, specifically. Caro also testified that he
asked defendant when he was supposed to return the car and that defendant “couldn’t answer”
that question. Defendant objected to that testimony, and the trial court sustained the objection.
The State again asked Caro what defendant said in response to the question of when he was
supposed to return the car, Caro said defendant “couldn’t answer,” and the trial court again
sustained defendant’s objection to that testimony.
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¶ 36 Caro testified that the Kia was in generally good condition. He testified that the car’s
steering column was not peeled, the ignition was not pulled out, and there were no wires hanging
out to suggest that the car had been hot-wired. Caro also testified that the car’s windows were not
broken, that no locks had been pulled off of any of the doors, and that the radio had not been
removed. The outside of the car had no visible damage.
¶ 37 Caro testified that, after he arrested defendant, he called Jason Fox to tell him that the
police had the car. Caro testified that, when he spoke to Jason on the phone, Jason described the
person he had seen at the pawn shop as “a male Black, about six feet [tall] with braids.” Caro’s
reports did not contain any description of the person whom Jason Fox had allegedly seen at the
pawn shop on January 19, 2013. Caro did not conduct any physical lineup or photo array for
Jason.
¶ 38 At a sidebar, defense counsel requested permission to ask Caro whether Jason had viewed
a report listing defendant’s name as the arrestee in order to show that Jason’s identification of
defendant was suggested. The court denied defense counsel’s request.
¶ 39 Defendant testified in his own defense. He stated that, on January 20, 2013, he planned to
travel to Chicago from his house in Peoria to visit his grandmother. A man that defendant knew
only as “Q” picked him up in a silver SUV. Defendant described Q as being 5 feet, 10 inches or
5 feet, 11 inches tall, with “short-medium” dreadlocks.
¶ 40 Defendant said that Q drove him to a house where he met with a man named Brian. Q
was a friend of defendant’s cousin. Defendant had met Brian about a month earlier, through Q.
On cross-examination, defendant testified that Brian was a drug addict.
¶ 41 Defendant testified that he gave Brian $40 to use his car, and Brian gave defendant his
keys. Defendant said that he had seen Brian driving the car for about three or four days before
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January 20, so he thought that Brian owned the car. Defendant testified that he was supposed to
return the car to Brian by 9:30 p.m. on the same day he rented it, January 20. He also admitted
that he did not have a driver’s license at the time.
¶ 42 When defendant got in the car, he did not notice any damage to the steering column, the
interior, the locks, the windows, or the radio. He testified that the keys he had received from
Brian worked in the car.
¶ 43 Defendant and his girlfriend drove to Chicago and stopped at a restaurant on Western
Avenue. After they got their food, they began driving again, eating as they drove. The police
pulled defendant over on Madison Street and ordered him out of the car.
¶ 44 Defendant testified that, once he got out of the car, a police officer asked where he got
the car from, and defendant said, “I rented it from a hype for $40.” Defendant testified that a
hype was “[a] person that get[s] high.” He testified that the police never asked him the hype’s
name. Defendant said that he did not find out that the car had been stolen until the police told
him he was being charged with PSMV.
¶ 45 Defendant testified that he had never been to the pawn shop in Peoria where Jason said he
saw defendant. Defendant testified that he had been convicted of residential burglary in 2009 and
a “narcotics offense” in 2005.
¶ 46 On cross-examination, the State asked defendant if he ever told the police when he was
supposed to return the car, and defendant replied, “He never asked, ma’am.” Defendant gave the
same answer when the State asked whether he told the police Brian’s phone number.
¶ 47 At the close of the defense case, defendant again moved for a mistrial, this time on the
basis that the State had elicited other-crimes evidence when it asked if defendant had a driver’s
license when he rented the car from Brian. The trial court denied the motion.
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¶ 48 During the jury-instructions conference, defendant requested an instruction on the lesser
offense of criminal trespass to a vehicle. The trial court denied the request because, if the jury
believed defendant’s testimony, “then it wouldn’t even fall under the provision of the criminal
trespass to vehicle.”
¶ 49 After closing arguments, the jury found defendant guilty of PSMV. The trial court denied
defendant’s motion for a new trial and sentenced defendant to nine years’ incarceration.
Defendant filed this appeal.
¶ 50 II. ANALYSIS
¶ 51 A. Reasonable Doubt
¶ 52 Defendant first argues that the State failed to prove beyond a reasonable doubt that he
knew that the car he was arrested in was stolen. In assessing the sufficiency of the evidence, we
determine whether a rational trier of fact, viewing the evidence in the light most favorable to the
State, could have found the essential elements of the crime beyond a reasonable doubt. People v.
Ross, 229 Ill. 2d 255, 272 (2008). We will not substitute our judgment for that of the trier of fact
with regard to the credibility of witnesses, the weight to be given to each witness’s testimony, or
the reasonable inferences to be drawn from the evidence. Id. A defendant’s conviction will not
be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable
doubt as to his guilt. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 53 The PSMV statute requires the State to prove that a defendant possessed a stolen vehicle
with knowledge that it had been stolen. 625 ILCS ILCS 5/4-103(a)(1) (West 2012). Knowledge
is a question of fact for the jury. People v. Abdullah, 220 Ill. App. 3d 687, 690 (1991). Direct
proof of knowledge is not necessary; it may be proven by “circumstances that would induce a
belief in a reasonable mind that the property was stolen.” Id. A defendant’s exclusive,
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unexplained possession of a stolen car gives rise to an inference that the defendant knew that the
vehicle was stolen. 625 ILCS 5/4-103(a)(1) (West 2012); People v. Gentry, 192 Ill. App. 3d 774,
775-79 (1989). The defendant “may attempt to rebut the inference of guilty knowledge which
arises from the possession of a stolen vehicle, but the defendant must offer a reasonable story or
be judged by its improbabilities.” Abdullah, 220 Ill. App. 3d at 691. Nor is the trier of fact
required to accept the defendant’s version of the facts. Id.
¶ 54 In this case, it was undisputed that defendant was arrested while driving James Fox’s Kia,
and that the Kia had been stolen from Fox’s garage. Thus, the jury could permissibly draw an
inference that defendant knew the car was stolen.
¶ 55 While defendant testified that he had rented the car for $40 from an acquaintance for a
one-day, round-trip drive from Peoria to Chicago and back, the jury was not required to accept
his explanation of his possession of the stolen car. Officer Caro testified that defendant gave him
different explanations for his possession of the car: he first said that he borrowed the car from a
friend whose name he did not know, then said that he rented the car from an unnamed drug
addict.
¶ 56 There was thus sufficient evidence on which the jury could rely to reject defendant’s
explanation for his possession of the stolen car. It was the jury’s prerogative to assess the
credibility of defendant’s story, and, in light of the evidence supporting the jury’s rejection of his
testimony, we will not second-guess its assessment.
¶ 57 Defendant cites People v. Gordon, 204 Ill. App. 3d 123, 128 (1990), where this court
held that the State failed to prove a defendant’s knowledge in a PSMV case, alleging that this
case is factually similar. In Gordon, the evidence showed that the owner of the car had
previously loaned it to his friend, Chris Jackson, although the owner had not loaned the car to
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Jackson on the day in question. Id. at 124. The owner said that, if he knew that Jackson had taken
the car, he would not have reported it stolen. Id. The defendant was arrested while driving the car
with Jackson. Id. The keys were in the ignition. Id. at 127. The defendant testified that he had
seen Jackson drive the car before, that he thought it belonged to Jackson, and that Jackson had
asked him to fix the radio of the car. Id. at 125. Other witnesses testified that the defendant had
repaired their car radios in the past. Id. When the defendant was pulled over in the car, he did not
try to flee, and there “were no signs of unauthorized entry into the vehicle.” Id. at 128.
¶ 58 We do not agree that Gordon compels us to reverse defendant’s conviction in this case.
Unlike Gordon, where there was evidence that the car’s owner had previously loaned the car to
one of the individuals found in it, there was no evidence in this case the James Fox had ever
given the car to Brian or defendant before. And there was evidence in Gordon corroborating the
defendant’s explanation that he had been hired to fix the car’s radio: other witnesses testified that
they had previously hired the defendant to do such work. Here, there was no evidence to
corroborate the notion that Brian had rented his car out to defendant or anyone else before.
¶ 59 We acknowledge that the pristine condition of the vehicle, at the time that defendant was
caught driving it, was not suggestive in any way that the car had been stolen. That is not
surprising, given that it was not stolen off the street, but rather when the car keys were stolen
from the Foxes’ kitchen counter. Still, it is an evidentiary point in defendant’s favor. See
Abdullah, 220 Ill. App. 3d at 691 (“[t]he condition of the vehicle is one of the most significant
factors which courts consider in determining whether or not the defendant had knowledge of the
vehicle’s theft.”). But the jury heard that evidence, weighed it along with the other evidence, and
still found defendant guilty.
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¶ 60 We find that the State presented sufficient evidence to prove defendant’s knowledge. His
unexplained possession of the car gave rise to an inference that he knew it was stolen, and his
explanation for his possession conflicted with other evidence such that the jury could reasonably
reject his explanation.
¶ 61 B. Testimony of Jason Fox
¶ 62 Defendant next contends that the trial court erred in admitting two portions of Jason
Fox’s testimony. We first address defendant’s argument that Jason should not have been able to
testify regarding defendant’s link to jewelry taken from his parents’ house because that evidence
constituted impermissible other-crimes evidence. Jason testified that he had gone to the pawn
shop to recover his mother’s stolen jewelry and that he saw defendant at that pawn shop,
testimony that, according to defendant, created a suggestion that defendant was involved with the
theft and sale of the jewelry.
¶ 63 As we recounted earlier, the trial court initially agreed with defendant, granting the
portion of defendant’s motion in limine requesting exclusion of “[a]ny mention of other property
that was stolen” from the Fox home. But when the State proceeded to mention the stolen jewelry
and the pawn shop in its opening statement and then introduced the evidence of the jewelry and
pawn shop through Jason’s testimony, the trial court overruled defense objections. The court also
denied defendant’s request for mistrial on this ground, reasoning that the evidence of the stolen
jewelry was relevant “[t]o show that the car was probably stolen or possibly stolen.”
¶ 64 A trial court’s ruling on the admissibility of evidence, and its balance of the probative
nature of that evidence versus its prejudicial impact, is left to the sound discretion of the court
and will be reversed only for an abuse of that discretion. People v. Pikes, 2013 IL 115171, ¶¶ 11-
12. An abuse of discretion occurs where the trial court’s decision is arbitrary, fanciful, or so
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unreasonable that no reasonable person would adopt the trial court’s view. People v. Illgen, 145
Ill. 2d 353, 364 (1991).
¶ 65 Other-crimes evidence is inadmissible if it is used to show a defendant’s propensity to
commit crimes. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011); People v. Heard, 187 Ill. 2d 36, 58
(1999). Evidence of other crimes may be admitted for other purposes, such as proving a
defendant’s motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident. Ill. R. Evid. 404(b) (eff. Jan. 1, 2011). “In fact, [the supreme] court has held
that evidence of other crimes committed by the defendant may be admitted if relevant to
establish any material question other than the propensity to commit a crime.” (Internal quotation
marks omitted.) People v. Pikes, 2013 IL 115171, ¶ 13.
¶ 66 Defendant argues that, by Jason telling the jury about the Fox burglary and the jewelry
theft, the police’s advice to him to visit pawn shops to search for the stolen jewelry, and then his
encountering defendant at one of those pawn shops, the jury could infer that defendant was part
of the break-in at the Fox home, and thus part of the initial theft of the vehicle he was caught
driving.
¶ 67 The State argues that the admission of this evidence of the Fox home burglary, the theft
of the jewelry, and the police’s advice to Jason to visit pawn shops to search for the missing
jewelry was proper under the continuing-narrative exception to the prohibition of other-crimes
evidence. The State contends that this evidence explained why Jason was visiting a pawn shop in
the first place and provided background for Jason’s identification of defendant while he was
driving his parents’ stolen car, the day before defendant was stopped in Chicago.
¶ 68 Under the continuing-narrative exception, evidence of a defendant’s other bad acts is
admissible where the “ ‘other *** acts are all a part of the continuing narrative which concern
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the circumstances attending the entire transaction and they do not concern separate, distinct and
disconnected crimes.’ ” People v. Adkins, 239 Ill. 2d 1, 32 (2010) (quoting People v. Marose, 10
Ill. 2d 340, 343 (1957)). The exception will not apply, “even when the crimes occur in close
proximity, if the crimes are distinct and ‘undertaken for different reasons at a different place at a
separate time.’ ” Adkins, 239 Ill. 2d at 33 (quoting People v. Lindgren, 79 Ill. 2d 129, 139-40
(1980)); see also People v. Johnson, 34 Ill. 2d 202, 206 (1966) (in trial of defendant charged with
stealing from sleeping train passenger, testimony that he stole from another sleeping passenger
on same train was part of continuing narrative).
¶ 69 But even if we accepted the State’s invocation of the continuing-narrative exception, we
question the probative value of that evidence. The State could have just as easily established that
Jason saw defendant with the stolen vehicle without creating an inference that defendant was
involved with the burglary and the jewelry theft at the Fox home. Jason could have simply
testified that he saw his father’s car in the parking lot of a store, without detailing what kind of
store it was. There was no need to specify that, while on a mission searching for the jewelry
taken during the burglary, he happened to see defendant at a pawn shop—the very type of store
at which the police who were investigating the burglary told Jason to look for his mother’s
jewelry. There was no reason that the jury had to hear any mention whatsoever of stolen jewelry
or the pawn shop. Thus, even were we to credit the State’s continuing-narrative argument, the
probative value of this evidence was slight at best.
¶ 70 In contrast, the prejudicial impact of this evidence substantially outweighed any probative
value. See Pikes, 2013 IL 115171, ¶ 11 (other-crimes evidence should not be admitted if
prejudicial effect substantially outweighs probative value). The evidence of the jewelry and the
pawn shop not only created an unmistakable inference that defendant was involved in another
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No. 1-13-3881
crime for which he was not on trial, but it directly impacted his theory of the case. Defendant
testified that he did not know the Fox car was stolen, and the other-crime evidence strongly
suggested that defendant knew the car was stolen—because he, in fact, was the one who stole it.
¶ 71 Defendant, who began the trial under the impression that evidence of the stolen jewelry
was off-limits, was suddenly forced to dispel the improper suggestion that he was involved in the
uncharged burglary. Defendant had to call a witness, Detective Schweigert, to at least partially
rebut the notion, and defense counsel devoted significant time in her closing argument to refuting
the notion that defendant had anything to do with the burglary itself. “Even if other-crimes
evidence is relevant, it must not become the focal point of the trial. [Citation.] The trial court
should prevent a mini-trial of a collateral offense.” (Internal quotation marks omitted.) People v.
Hale, 2012 IL App (1st) 103537, ¶ 24.
¶ 72 To make matters worse, defendant was prevented from offering evidence that another
individual, Brian Lamb, had been arrested for the burglary of the Fox home. At trial, defendant
sought to elicit testimony from Detective Schweigert that he had arrested Lamb for the burglary
of the Foxes’ home. The trial court prevented defendant from doing so, ruling that Schweigert’s
testimony would be inadmissible hearsay.
¶ 73 We disagree that this excluded evidence was hearsay. The hearsay rule only applies to
statements. See Ill. R. Evid. 801(c) (eff. Jan. 1, 2011) (“ ‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to prove the
truth of the matter asserted.” (Emphasis added.)). A “statement,” for purposes of the hearsay
rule, is either “an oral or written assertion” or “nonverbal conduct of a person, if it is intended by
the person as an assertion.” Ill. R. Evid. 801(a) (eff. Jan. 1, 2011). Here, Schweigert would not
have recounted a statement. Schweigert would have simply been relaying an event—his arrest of
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No. 1-13-3881
Lamb. There was no assertion of fact that would have been reproduced in court had Schweigert
testified that he arrested Lamb for the burglary. 2
¶ 74 The exclusion of evidence that Lamb had been arrested for the burglary was critical,
because “the concerns underlying the admission of other-crimes evidence are not present when
the uncharged crime or bad act was not committed by the defendant.” Pikes, 2013 IL 115171,
¶ 16. The fact of Lamb’s arrest for the burglary could have dispelled much of the prejudice
created by the evidence of the burglary and the stolen jewelry. Instead, defendant found himself
unnecessarily fighting off an uncharged burglary offense that directly impacted the defense’s
theory of the case, while being prevented from offering potent, available evidence that someone
else had committed that offense.
¶ 75 The State notes that defense counsel was able to limit any damage by eliciting
Schweigert’s testimony that he did not arrest defendant for the burglary, but the mere fact that
Schweigert had not arrested defendant for the burglary did not dispel the notion that defendant
committed it. Instead of learning that the Fox burglary had resulted in the arrest of someone
other than defendant, the jury was left with the impression that the crime had remained unsolved.
In fact, coupled with the evidence that defendant was seen leaving a pawn shop where Jason had
gone to search for his mother’s jewelry, the fact that defendant had not been arrested could lead
to an inference that defendant had committed a burglary and gotten away with it. Defendant
2
It appears that the trial court correctly categorized Schweigert’s testimony that Lamb confessed
to the burglary as hearsay. Schweigert would have repeated an out-of-court statement (the confession)
used to prove the truth of the matter asserted in that statement (that Lamb committed the burglary). We do
not consider this ruling as part of our prejudice analysis, nor do we consider whether Schweigert could
have testified to the confession under some exception to the hearsay bar. See Ill. R. Evid. 804(b)(3) (eff.
Jan. 1, 2011) (providing for admission of hearsay statements made against declarant’s penal interest
where declarant is unavailable to testify).
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No. 1-13-3881
could only truly eliminate the prejudicial effect of the other-crimes evidence by connecting
Lamb to the burglary.
¶ 76 The risk of unfair prejudice was also elevated because defendant had a prior conviction
for residential burglary. We do not mean to suggest that the trial court erred in admitting
evidence of defendant’s prior conviction as impeachment evidence—it did not. See Ill. R. Evid.
609(a) (eff. Jan. 1, 2011) (evidence of prior conviction may be used to impeach witness). But
Jason’s testimony suggested that defendant was involved in the burglary of the Fox home, and
the jury heard that defendant had been convicted of the very same offense. Defendant’s prior
conviction thus amplified the risk of unfair prejudice, as it could have increased the risk that the
jury would conclude that defendant was more likely involved in the Fox burglary because of his
prior burglary. And we emphasize that defendant’s prior burglary conviction was not a
conviction for the same crime for which defendant was on trial—it was a conviction for the same
uncharged offense to which the State impermissibly linked defendant.
¶ 77 For all of these reasons, we hold that the admission of Jason’s testimony regarding the
jewelry stolen from the Fox home, and his subsequent identification of defendant at a pawn shop,
was an abuse of discretion. The abuse-of-discretion standard, though admittedly the most
deferential standard of review in the law, is not a rubber stamp. See Paul v. Gerald Adelman &
Associates, Ltd., 223 Ill. 2d 85, 99 (2006). Under the specific circumstances of this case, we hold
that the risk of unfair prejudice posed by that evidence substantially outweighed its minimal
probative value.
¶ 78 We now turn to the question of whether the trial court’s error in admitting this evidence
was harmless. The improper admission of other-crimes evidence is harmless when a defendant is
neither prejudiced nor denied a fair trial because of its admission. People v. Gregory, 2016 IL
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No. 1-13-3881
App (2d) 140294, ¶ 28. The State bears the burden persuading this court, beyond a reasonable
doubt, that the result of the trial would have been the same without the admission of the improper
evidence. Id.
¶ 79 We conclude that the admission of the other-crime evidence in this case was not harmless
beyond a reasonable doubt. Our supreme court has stated that “[t]he erroneous admission of
evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal.” People
v. Lindgren, 79 Ill. 2d 129, 140 (1980). This is such a case. As we have already explained, the
challenged evidence created the distinct inference that defendant had participated in the burglary
of the Fox home and thus that defendant had stolen the Foxes’ car, directly impacting his claim
at trial that he did not know the vehicle was stolen.
¶ 80 Nor did the trial court issue a limiting instruction to the jury to alleviate the possible
prejudice. See Gregory, 2016 IL App (2d) 140294, ¶ 30 (in considering whether improper other-
crimes evidence was harmless, noting that “[t]here was no limiting instruction *** to the jury,
which thus was free to consider the [evidence] in any manner that it saw fit, including as
evidence of propensity”). The court thus failed to mitigate the risk that the jury drew the
improper inference that defendant was the burglar.
¶ 81 Because the trial court abused its discretion in admitting Jason’s testimony regarding the
jewelry and the pawn shop, and that error was not harmless beyond a reasonable doubt, we
vacate defendant’s conviction and remand for a new trial.
¶ 82 Defendant raises two additional objections to Jason’s testimony, which we address only
to the extent they are likely to recur on retrial. See People v. Jones, 105 Ill. 2d 342, 353 (1985)
(when remanding for new trial on one issue, court should consider other issues only if likely to
recur on retrial).
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No. 1-13-3881
¶ 83 First, defendant argues that the State introduced improper other-crimes evidence when
Jason testified that defendant sped out of the parking lot of the pawn shop—in other words, the
court allowed the State to introduce evidence that defendant broke the speed limit while driving
away. But the State did not use that testimony to show defendant’s propensity to drive recklessly;
it used defendant’s speeding to show his guilty knowledge. In its closing argument, the
prosecution argued, “As [Jason] Fox was trying to stay into [sic] the speed limit, the defendant
was pulling away from him going 50 to 55 miles an hour ***. That shows his consciousness of
guilt.” This was a permissible purpose for the evidence. See People v. Abernathy, 402 Ill. App.
3d 736, 755 (2010) (other-crimes evidence admissible to prove defendant’s consciousness of
guilt).
¶ 84 Second, defendant contends that Jason’s in-court identification of defendant was tainted
and inadmissible, because he made it after seeing a single photograph of defendant at the police
station and after Officer Caro had told him that the photograph was a picture of the person in
custody for possessing the stolen vehicle.
¶ 85 An in-court identification that is based on an out-of-court photographic identification is
inadmissible where the out-of-court identification is “so impermissibly suggestive as to create a
substantial risk of irreparable misidentification.” People v. McTush, 81 Ill. 2d 513, 518 (1980).
But even where an out-of-court identification is impermissibly suggestive, “the State may
nevertheless overcome that obstacle, by a clear and convincing showing, based on the totality of
the surrounding circumstances, that the witness is identifying the defendant solely on the basis of
his memory of events at the time of the crime.” (Internal quotation marks omitted.) Id. at 520.
When considering whether an in-court identification has a sufficient independent basis from a
suggestive pretrial identification, a court must consider several factors: the witness’s opportunity
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No. 1-13-3881
to view the offender at the time of the crime, the witness’s degree of attention, the accuracy of
the witness’s prior description of the criminal, the level of certainty demonstrated by the witness
at the confrontation, the length of time between the crime and the confrontation, and any
acquaintance the witness had with the suspect prior to the crime. Id. at 521; see Neil v. Biggers,
409 U.S. 188, 199 (1972); People v. Slim, 127 Ill. 2d 302, 307 (1989).
¶ 86 We decline to reach the admissibility of Jason’s in-court identification because it appears
that the trial court did not conduct a full analysis of this question. The trial court excluded
Jason’s identification of defendant in the photograph at the police station but did not appear to
consider whether Jason’s photographic identification of defendant at the police station tainted his
in-court identification, or whether the State could overcome that taint by clear and convincing
evidence. Instead, the trial court simply left it to the jury to consider whether the identification
was “sketchy.” On retrial, should defendant challenge the admissibility of Jason’s in-court
identification, the court should consider it under the rubric outlined by our supreme court in
McTush.
¶ 87 C. Prosecutorial Misconduct
¶ 88 Defendant next contends that the prosecution committed misconduct in its opening
statement, direct examination of Officer Caro, and closing arguments. We address defendant’s
arguments only to the extent that we find them likely to recur on retrial.
¶ 89 Defendant first argues that, in its opening statement, the prosecution “blatantly violated
the judge’s pre-trial ruling barring it from mentioning the theft of *** jewelry.” But as we have
held that the evidence of the jewelry is inadmissible on retrial, this issue is not likely to recur.
¶ 90 Next, defendant contends that the prosecutor improperly elicited testimony from Officer
Caro regarding defendant’s silence in response to questions Caro asked him on the day defendant
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No. 1-13-3881
was arrested. Defendant contends that the prosecutor committed misconduct in eliciting this
evidence—or at least attempting to—because, prior to trial, she “assured the judge, and defense
counsel, that [she] would not use [defendant’s] silence against him.”
¶ 91 Caro’s testimony about defendant’s silence concerned two different time periods and
locations. One such instance happened at the police station, the other on the roadside after the
police pulled defendant over in the vehicle. We consider each of these instances in turn.
¶ 92 Defendant’s conversation with Caro at the police station occurred after defendant had
been arrested and been given warnings pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). In
Doyle v. Ohio, 426 U.S. 610, 619 (1976), the United States Supreme Court held that “the use ***
of [an arrestee’s] silence, at the time of arrest and after receiving Miranda warnings, violate[s]
the Due Process Clause of the Fourteenth Amendment.” But “Doyle applies only when a
defendant invokes his right to remain silent.” People v. Patterson, 217 Ill. 2d 407, 445 (2005).
“Once the right to remain silent has been waived, it can be invoked only by a defendant’s
positive assertion that he wants to remain silent.” Id.
¶ 93 Here, Caro testified that he advised defendant of his Miranda rights and that defendant
agreed to speak with him. Thus, defendant waived his right to remain silent. See, e.g., People v.
Hart, 214 Ill. 2d 490, 513 (2005) (defendant waived right to silence where he “agreed to speak
with [detective] and ‘make a statement’ ”). Accordingly, the State was entitled to introduce the
entirety of the conversation, including the fact that defendant could offer no specifics regarding
his rental agreement with Brian. See People v. Brown, 222 Ill. App. 3d 703, 713-14 (1991)
(“[W]here a defendant has been advised of his Miranda rights and subsequently waives them, the
jury may consider the entire communicative process in order to better evaluate the meaning and
accuracy of the statements that were made.” (Emphasis added.)).
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No. 1-13-3881
¶ 94 Turning to defendant’s silence at the roadside, defendant argues that “pre-arrest silence in
response to police questioning is generally inadmissible as substantive evidence.” After
considering this issue, we concluded that a recent decision of the United States Supreme Court,
Salinas v. Texas, 570 U.S. ___, 133 S. Ct. 2174 (2013), was directly relevant to the question of
the admissibility of a suspect’s noncustodial silence and asked the parties for supplemental
briefing on the impact of Salinas. In his supplemental brief, defendant argued for the first time
that he was in custody while questioned at the roadside, rendering Salinas inapplicable.
¶ 95 We decline to reach the issue of the admissibility of defendant’s roadside silence because
it would require us to resolve the issue of whether defendant was in custody during the traffic
stop, an issue that the trial court never had the opportunity to reach. We leave this question to the
trial court on retrial, should the State once again attempt to introduce evidence of the roadside
conversation between the police and defendant and should defendant challenge its admissibility.
¶ 96 Defendant’s final prosecutorial-misconduct argument is that the prosecution committed
misconduct several times during its closing arguments. We decline to consider the propriety of
the State’s closing argument, as it is unlikely to recur on retrial. See, e.g., People v. Orr, 149 Ill.
App. 3d 348, 362 (1986) (declining to consider defendant’s claim “that the State’s closing
arguments were improper” because it was unlikely to recur on retrial); People v. Guthrie, 123 Ill.
App. 2d 407, 414 (1970) (same). We remind the State that its closing arguments must be
confined to the evidence (People v. Scott, 108 Ill. App. 3d 607, 614 (1982)) and may not shift the
burden of proof to defendant (People v. Adams, 281 Ill. App. 3d 339, 345 (1996)).
¶ 97 D. Lesser-Included Offense
¶ 98 Finally, defendant contends that the trial court erred in denying his request for a jury
instruction on the offense of criminal trespass to a vehicle, which, he argues, was a lesser-
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No. 1-13-3881
included offense of PSMV. We decline to reach this issue, as we cannot be sure what the
evidence on retrial will be, or whether it will justify the delivery of an instruction on criminal
trespass to a vehicle. See People v. Jones, 175 Ill. 2d 126, 132 (1997) (in deciding whether to
give lesser-included offense instruction, court must determine whether “[v]ery slight evidence”
existed to support instruction).
¶ 99 III. CONCLUSION
¶ 100 For the reasons stated above, we vacate defendant’s conviction and remand for a new
trial.
¶ 101 Vacated and remanded.
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