                                         2018 IL App (3d) 160253

                              Opinion filed December 14, 2018
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2018

     THE PEOPLE OF THE STATE                          )      Appeal from the Circuit Court
     OF ILLINOIS,                                     )      of the 13th Judicial Circuit,
                                                      )      La Salle County, Illinois,
            Plaintiff-Appellee,                       )
                                                      )      Appeal No. 3-16-0253
            v. 	                                      )      Circuit No. 15-CF-194

                                                      )

     LAMONT L. LARKE,                                 )      Honorable

                                                      )      Howard C. Ryan Jr.,
            Defendant-Appellant.                      )      Judge, Presiding.
     _____________________________________________________________________________

           JUSTICE WRIGHT delivered the judgment of the court, with opinion.
           Justices O’Brien and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          The State charged Lamont L. Larke with unlawful possession of a controlled substance

     with intent to deliver, and additionally alleged defendant was within 1000 feet of a school at the

     time of the offense. A La Salle County jury found defendant guilty of the offense charged. On

     appeal, defendant assigns error to the trial court’s admission of other-crimes evidence, and the

     trial court’s decision not to answer a question posed by the jury during deliberation.

     Additionally, defendant contends a recent amendment to section 407 of the Illinois Controlled

     Substances Act applies retroactively to defendant’s case.
¶2                                           I. BACKGROUND

¶3          On June 16, 2015, the State charged Lamont L. Larke (defendant) with unlawful

     possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2014))

     and alleged “that the said defendant knowingly and unlawfully possessed with the intent to

     deliver 1 gram or more but less than 15 grams of a substance containing cocaine, a controlled

     substance.” On September 8, 2015, the State indicted defendant on a second count of unlawful

     possession of a controlled substance with intent to deliver (720 ILCS 570/407(b)(1) (West

     2014)) and alleged “that the said defendant knowingly and unlawfully possessed with the intent

     to deliver more than 1 gram, but not more than 15 grams, of a substance containing cocaine, a

     controlled substance *** within 1,000 feet of Jefferson Grade School, in Ottawa, Illinois.”

¶4          On August 21, 2015, the State filed a motion in limine seeking to admit other-crimes

     evidence of defendant’s prior conviction for unlawful possession of cannabis with intent to

     deliver in Cook County case No. 10-CR-043260 for purposes of impeachment. On

     September 22, 2015, the trial court conducted a jury trial in the matter which ended in a hung

     jury and was declared a mistrial. On October 28, 2015, the State filed a second motion in limine

     seeking to admit other-crimes evidence of defendant’s prior conviction in the State’s case-in­

     chief as evidence of defendant’s knowledge and/or intent. On February 8, 2016, immediately

     before defendant’s second jury trial, the trial court conducted a hearing on the State’s motion to

     admit the other-crimes evidence. During the hearing, the State argued the other crime’s evidence

     was admissible to show defendant’s knowledge and intent. Defendant objected to the admission

     of the other-crimes evidence and argued the prejudicial effect far outweighed the probative

     value. When ruling, the trial court stated:




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                   “THE COURT: All right. I have to balance the probative and prejudicial.

            Threshold question of similarities has been met.

                   Now the prejudicial. It’s close in time and proximity to the previous conviction.

            No, I think it’s probative. I think the probative value far outweighs the prejudicial. I’m

            going to permit them to use it with the caveat it must be a special limiting instruction and,

            State, you’re going to have to watch that.”

¶5          To begin the trial, the State called Steve Hopkins, an officer with the Ottawa Police

     Department, to testify. Hopkins testified that at about 1:15 a.m. on May 30, 2015, he was

     patrolling the 1500 block of Columbus Street in Ottawa, Illinois. Hopkins observed what

     appeared to be people arguing next to a gas pump at the Circle K gas station. Hopkins’s squad

     car was equipped with a video camera. The video camera was not activated because Hopkins did

     not turn on his overhead lights when pulling into the parking lot. Hopkins approached the car to

     make sure “nothing was going on.” At this time, Hopkins made contact with defendant, and

     Corporal Kyle Booras arrived at the scene. Defendant was sitting in the passenger’s seat of the

     car with two or three others in the car. Hopkins noticed an open bottle of alcohol near where

     defendant was sitting. Defendant was asked to exit the vehicle, and Booras searched defendant.

     Booras found some baggies on defendant’s person. Defendant told Hopkins the baggies were for

     personal use. A subsequent search of the vehicle yielded no further contraband or paraphernalia.

¶6          Next, the State called Booras to testify. On the night in question, Booras arrived at the

     Circle K to back up Hopkins. Booras walked up to the vehicle and made contact with defendant.

     Booras observed some open alcohol containers in the vehicle. Booras asked defendant to step out

     of the vehicle and asked defendant to pour out the alcohol. Defendant informed Booras that he

     had “a little crack.” Booras found bags that contained a white, chalky substance on defendant’s




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     person. Booras also located $239 in defendant’s pants pocket. Booras did not find drug

     paraphernalia on defendant. Defendant told the officers that the white, chalky substance was his

     and was for his own personal use. Defendant also told the officers that the money in his pocket

     came from a security job he worked in Chicago. Booras never saw defendant selling anything.

¶7          The parties agreed that if called to testify, Cynthia Koulis, a forensic scientist at the

     Illinois State Police crime lab, would testify that she received a plastic bag containing 28 smaller

     plastic bags. Koulis also received another bag that contained two smaller plastic bags. Each

     individual plastic bag contained an off-white, rock-like substance. Koulis tested 10 of the bags.

     The 10 bags tested positive for the presence of cocaine.

¶8          The State called Marc Hoster, a detective with the Ottawa Police Department, to testify.

     Hoster was assigned to investigate drug-related crimes and had received specialized drug

     training. Hoster was familiar with the various weights at which different controlled substances

     were generally packaged and sold. Hoster testified that the 10 bags in question appeared “to be

     exactly the same package in the same way, same size, tied off, knotted in the exact same way.

     Looks like they were all packaged at the same time or relatively the same time together.” Hoster

     opined that the 10 bags were not for personal use. Additionally, Hoster testified that the Circle K

     gas station was 600 feet from Jefferson School, and the defense stipulated the distance was less

     than 1000 feet.

¶9          Following Hoster’s testimony, the court addressed the jury as follows:

                       “THE COURT: All right, ladies and gentlemen, we have reached a point in the

            trial where I’m going to read you an instruction. Please listen carefully because you’re

            going to get it again but I need to read this instruction before the next piece of evidence

            comes in.




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                      Evidence will be received that the defendant has been involved in an offense other

              than that charged in the indictment. This evidence has been received on the issue of the

              defendant’s intent and knowledge and may be considered by you only for that limited

              purpose. It is for you to determine what weight should be given to this evidence on the

              issue of knowledge and intent.”

       Over defendant’s objection, the State admitted a certified copy of defendant’s conviction for

       unlawful possession of cannabis with the intent to deliver in Cook County case No. 10-CR­

       043260. At the close of the State’s evidence, the trial court denied defendant’s motion for a

       directed verdict.

¶ 10          During closing argument, the State argued there was no dispute concerning the amount of

       cocaine or that defendant possessed the cocaine within 1000 feet of Jefferson Grade School.

       Thus, the only question before the jury was defendant’s intent to deliver. The defense argued that

       the State did not prove beyond a reasonable doubt that defendant intended to deliver the drugs.

¶ 11          During deliberation, the jury sent a note to the court which read “[i]f we have a hung

       jury, will the defendant be found not guilty on all charges?” In a conversation between the State,

       defense counsel, and the court, the State suggested that the court instruct the jury to keep

       deliberating. Defense counsel suggested that the court instruct the jury that “if they have a hung

       jury the defendant will not be found not guilty.” The court brought the jury back into the

       courtroom and stated:

                      “THE COURT: Ladies and gentlemen, at this time the best way I can answer this,

              you have your jury instructions. Continue on, okay? That’s the best I can do for you.”

¶ 12          The jury returned a verdict of guilty to the charge of unlawful possession of a controlled

       substance with intent to deliver within 1000 feet of a school. On April 8, 2016, the trial court




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       sentenced defendant to served seven years in the Illinois Department of Corrections. Defendant

       filed no posttrial motions. Defendant appeals.

¶ 13                                             II. ANALYSIS

¶ 14          Defendant first argues the trial court erred when it allowed the State to introduce

       evidence of defendant’s prior conviction for possession of cannabis with intent to deliver as

       other-crimes evidence of defendant’s intent to deliver the cocaine in the instant case.

       Specifically, defendant argues the other-crimes evidence should not have been admitted because

       there was no showing of a general threshold similarity between the facts of the prior conviction

       and the current charged offense.

¶ 15          The State argues defendant forfeited his other-crimes evidence argument. Alternatively,

       the State contends the trial court’s admission of the other-crimes evidence was not error.

¶ 16          At the outset, defendant acknowledges that his failure to include this issue in a posttrial

       motion amounts to forfeiture of the claim on appeal. People v. Enoch, 122 Ill. 2d 176, 186

       (1988). Defendant requests review pursuant to plain error. The doctrine of plain error is a limited

       and narrow exception to the rule of procedural default wherein a reviewing court may consider

       an unpreserved error: (1) where a clear and obvious error occurred and the evidence was so

       closely balanced that the error alone threatened to tip the scales of justice against defendant,

       regardless of the seriousness of the error; or (2) where a clear and obvious error occurred, and the

       error was so serious that it affected the fairness of defendant’s trial and challenged the integrity

       of the judicial process regardless of the closeness of the evidence. People v. Walker, 232 Ill. 2d

       113, 124 (2009). Defendant bears the burden of persuasion under either prong of plain error. See

       People v. Sebby, 2017 IL 119445. Reviewing courts conducting plain error analysis must first

       determine whether error occurred at all. Id., ¶ 49.




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¶ 17           It is within the discretion of the trial court to admit other-crimes evidence when such

       evidence is relevant “to show modus operandi, intent, identity, motive, or absence of mistake

       with respect to the crime with which the defendant is charged. People v. Watkins, 2015 IL App

       (3d) 120882, ¶ 44. When the State offers other-crimes evidence, the court must weigh its

       probative value against its prejudicial effect. People v. Pikes, 2013 IL 115171, ¶ 11. Evidence of

       another crime may be used “only when the other crime has some threshold similarity to the crime

       charged.” People v. Bartall, 98 Ill. 2d 294, 310 (1983). Similarity between the other crime and

       the crime charged serves to increase the relevance of the evidence and ensure the evidence is not

       being used to establish a defendant’s criminal propensities. Id.

¶ 18           The admissibility of evidence rests within the trial court’s sound discretion, and the

       court’s decision to admit evidence will not be disturbed absent an abuse of discretion. Pikes,

       2013 IL 115171, ¶ 12. 1 The trial court abuses its discretion only where its decision is arbitrary,

       fanciful, or unreasonable, or where no reasonable person would agree with the trial court’s

       decision. People v. Becker, 239 Ill. 2d 215, 234 (2010). Reviewing courts apply a de novo

       standard to determine whether a forfeited claim is reviewable as plain error. People v. Johnson,

       238 Ill. 2d 478, 485 (2010).

¶ 19           Here, this court’s decision in People v. Watkins, 2015 IL App (3d) 120882 is dispositive.

       In Watkins, the defendant was charged with unlawful possession of a controlled substance,

       cocaine, with intent to deliver. Id., ¶ 3. The prosecutor in Watkins sought to admit the

       defendant’s prior conviction for possession of cannabis with intent to deliver as other-crimes

       evidence to show the defendant’s intent or knowledge at trial. Id., ¶¶ 3, 4. The prosecutor

               1
                  We disagree with defendant’s argument that this issue is subject to de novo review under People
       v. Aguilar, 265 Ill. App. 3d 105 (1994). The instant case is factually distinguishable from Aguilar.
       Moreover, in its discretion, contrary to defendant’s argument that the trial court made no factual findings,
       the trial court specifically balanced the evidence and found that the crimes were similar and close in time.
       The trial court also granted a special limiting instruction.


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       informed the trial court that the defendant’s prior conviction was for possession of cannabis with

       intent to deliver, and that this conviction occurred within the last three or four years. Id., ¶ 47. On

       appeal, the defendant in Watkins argued, inter alia, that the trial court erred in admitting his prior

       conviction for possession of cannabis with intent to deliver as evidence of his intent to deliver

       cocaine in his present case because the State presented no facts to the trial court showing that the

       defendant’s prior offense had a threshold similarity with the crime charged. Id., ¶ 42. This court

       held that the information provided by the prosecutor, “albeit the bare minimum, was sufficient

       for the trial court to determine, in its discretion, that a general threshold similarity existed

       between the facts of the prior offense and the facts of the current offense.” Id., ¶ 47.

¶ 20          Just like in Watkins, the prosecutor in this case presented the court with information that

       defendant’s prior conviction was for possession of cannabis with intent to deliver, that his prior

       conviction was close in time to the current charge, and that defendant’s prior conviction also

       involved possession of a drug with intent to deliver. The other-crimes evidence was reliable

       because it was a conviction. The fact that a different drug was involved in defendant’s prior

       offense did not serve to make the prior offense and the current, charged offense dissimilar. See

       United States v. Hernandez, 84 F. 3d 931, 935 (7th Cir. 1996). Moreover, defendant’s intent was

       an element of the crime charged in this case, thereby elevating the probative value of the other-

       crimes evidence. For these reasons, defendant cannot establish plain error as no clear and

       obvious error occurred.

¶ 21          Next, defendant argues the trial court erred by failing to give a direct answer to the jury’s

       question about whether defendant would be found not guilty on all charges if there was a hung

       jury. Defendant argues the trial court should have answered “no,” and because the trial court did

       not answer the question directly, defendant was prejudiced and denied his right to a fair jury trial.




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       Conversely, the State contends the trial court’s actions were not in error because the jury was not

       entitled to receive a direct answer to their question where the question was irrelevant to whether

       defendant was guilty of the offense for which he was on trial.

¶ 22          Defendant once again acknowledges his forfeiture of this issue. We consider whether the

       doctrine of plain error excuses defendant’s forfeiture. A trial court’s decision to answer or refrain

       from answering a question posed by the jury during deliberation will not be disturbed absent an

       abuse of discretion. People v. Landwer, 279 Ill. App. 3d 306, 314 (1996).

¶ 23          In this case, defendant does not challenge the propriety or clarity of the jury instructions

       this particular jury received. Since the instructions given by the trial court were legally correct

       and understandable, the trial court simply answered the jury’s inquiry by redirecting the jurors to

       the prior instructions from the court. The case law recognizes that a trial court may decline to

       provide a more detailed answer where any additional explanation by the court would likely direct

       a particular verdict. Id. “A trial court may not ‘hasten’ a verdict by giving an instruction intended

       to coerce jurors into surrendering their views.” People v. Love, 377 Ill. App. 3d 306, 316 (2007)

       (holding that a trial judge’s instruction to jurors to “keep deliberating,” in response to a jury

       inquiry regarding an apparent impasse in deliberations, was not improper because the instruction

       was simple, neutral, and non-coercive, and did not imply to minority jurors that the majority

       view was the correct one); People v. Boyd, 366 Ill. App. 3d 84, 99 (2006).

¶ 24          Further, a trial court should only attempt to answer a jury’s question when the question is

       explicit and involves a point of law arising from the facts over which there is doubt or confusion.

       People v. Childs, 159 Ill. 2d 217, 228-29 (1994). To illustrate his point, defendant cites to Childs,

       159 Ill. 2d 217 (1994) and People v. Shannon, 206 Ill. App. 3d 310 (1990). These cases are

       readily distinguishable from the instant case. In Childs, the jury posed a question to the court




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        during deliberation that read: “Can the defendant be guilty of armed robbery and voluntary or

        involuntary manslaughter or must murder be the only option with armed robbery,” to which the

        court responded that the jury had received their instructions and to continue deliberating. Childs,

        159 Ill. 2d at 225. Our supreme court ruled that the court’s failure to answer the jury’s question

        constituted error because the question arose on a point of law stemming from the facts. See Id. at

        234. Unlike the Childs case, the question posed to this court did not pertain to the charges against

        defendant and did not arise from the facts. Similarly, during deliberations in Shannon, the jury

        sent out a note which stated: “On the first proposition for Agg. Batt. clarify is it intent to throw

        the Rock and it Resulted in great Bodily Harm or is it to throw it the Rock intending to do great

        Bodily Harm.” Shannon, 206 Ill. App. 3d at 315. The Fourth District held that the trial court

        abused its discretion by choosing not to respond to the jury’s inquiry. Id. at 317. Again, unlike

        Shannon, the question posed in the instant case did not signify confusion regarding the charges

        against defendant arising from the facts.

¶ 25           In this case, the jury questioned the nature of events that would follow the announcement

        of the jury’s verdict. The disposition following a verdict, much like the nature of the punishment

        to follow a guilty verdict, involves matters the jurors are not called upon to deliberate. The

        consequences of a jury verdict do not involve points of law the jury must deliberate. Therefore,

        the trial court did not err by referring the jurors back to the instructions previously received.

        Plain error does not apply here.

¶ 26	          Defendant lastly asserts that this court should remand the cause to the trial court to reduce

        defendant’s offense from a Class X felony to a Class 1 felony pursuant to the statutory

        amendment to section 407 of the Illinois Controlled Substances Act adopted in Public Act 100-3.

        720 ILCS 570/407 (eff. Jan. 1, 2018). Defendant argues this amendment, which reduced the




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       sentencing enhancement for delivery violations from a distance of 1000 feet to 500 feet of

       protected areas, applies retroactively to defendant’s case. The State argues the statutory

       amendment to section 407 does not apply retroactively to defendant’s case, and asserts our

       supreme court’s recent decision in People v. Hunter, 2017 IL 121306 is dispositive on the issue.

       Whether a statutory amendment should be applied retroactively to defendant’s case presents an

       issue of statutory construction subject to our de novo review. Hunter, 2017 IL 121306, ¶ 15;

       People v. Atkins, 217 Ill. 2d 66, 68 (2005).

¶ 27          In Landgraf v. USI Film Products, 511 U.S. 244 (1994), the United States Supreme Court

       promulgated a retroactivity analysis which our supreme court adopted in Commonwealth Edison

       Co. v. Will County Collector, 196 Ill. 2d 27 (2001). The first part of the Landgraf analysis is to

       determine whether the legislature clearly indicated the temporal reach of the amended statute.

       Commonwealth Edison Co., 196 Ill. 2d at 37. If the legislature does not clearly indicate the

       temporal reach, “the court must determine whether applying the statute would have a retroactive

       impact,” or, in other words, whether the retroactive application “would impair rights a party

       possessed when he acted, increase a party’s liability for past conduct, or impose new duties with

       respect to transactions already completed.” Id. at 38; (quoting Landgraf, 511 U.S. 244 at 280).

¶ 28          However, our supreme court in Howard held that pursuant to section 4 of the Statute on

       Statutes (5 ILCS 70/4 (West 2014)), Illinois courts need never reach beyond the first step of the

       Landgraf analysis. People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 20. The Howard court

       explained that section 4 of the Statute on Statutes “is a general savings clause, which this court

       has interpreted as meaning that procedural changes to statutes will be applied retroactively, while

       substantive changes are prospective only.” Id., ¶ 20.




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¶ 29          Recently, our supreme court in Hunter considered whether an amendment to juvenile

       sentencing provisions, allowing the trial court discretion to not impose mandatory firearm

       enhancements, applied retroactively to defendant’s case which was pending on appeal when the

       amendment became effective. Hunter, 2017 IL 121306, ¶¶ 45, 46. Because the amended statute

       was silent as to its temporal reach, much like the instant case, the supreme court turned to section

       4 of the Statute on Statutes, which states, in relevant part:

                      “If any penalty, forfeiture or punishment be mitigated by an provisions of a new

              law, such provision may, by the consent of the party affected, be applied to any judgment

              pronounced after the new law takes effect.” 5 ILCS 70/4 (West 2016).

       Citing several prior decisions, our supreme court held that pursuant to section 4, defendants are

       not entitled to be resentenced under a new statutory amendment that became effective while their

       case was on appeal after sentencing had already occurred. Hunter, 2017 IL 121306, ¶¶ 54, 56;

       See People v. Hansen, 28 Ill. 2d 322, (1963); See People v. Bradford, 106 Ill. 2d 492 (1985).

¶ 30          Here, because defendant requests to have his sentence mitigated, his claim falls directly

       under the provisions of section 4. 5 ILCS 70/4 (West 2016). Defendant was sentenced on

       April 8, 2016, and appealed on May 9, 2016. The amendment to section 407 was not effective

       until January 1, 2018. Much like the Hunter case, defendant’s case was completed in the trial

       court well before the amendment to section 407. Further, our holding on the other issues raised

       by defendant on direct appeal does not necessitate further proceedings in the trial court. Based on

       our supreme court’s recent decision in Hunter, we hold the amendment to section 407 does not

       apply retroactively to defendant in this case.

¶ 31                                            III. CONCLUSION

¶ 32          The judgment of the circuit court of La Salle County is affirmed.




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¶ 33   Affirmed.




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