                             2018 IL App (2d) 150608 

                                  No. 2-15-0608

                           Opinion filed January 19, 2018 

______________________________________________________________________________

                                             IN THE


                              APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Du Page County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 13-CF-1771
                                       )
DENNIS CLARK,                          ) Honorable
                                       ) Brian F. Telander,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Schostok concurred in the judgment and opinion.

                                           OPINION

¶1     Defendant, Dennis Clark, appeals from his conviction in the circuit court of Du Page

County of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2012)). He contends that

the trial court erred in admitting a prosecution witness’s conviction of armed robbery with a

firearm. Because the court did not abuse its discretion in admitting the conviction, we affirm.

¶2                                     I. BACKGROUND

¶3     On August 12, 2013, defendant and Christopher Nesbit robbed a Radio Shack store in

Naperville. Because Nesbit used a gun, defendant was charged, under a theory of accountability,

with armed robbery with a firearm. The sole issue at defendant’s jury trial would be whether the
2018 IL App (2d) 150608


gun that Nesbit used was a real firearm. Nesbit, who had pled guilty to the offense, would testify

for the State.

¶4      Before trial, defendant moved to bar the State from using Nesbit’s Cook County

conviction of armed robbery with a firearm. The State responded that, because the Cook County

conviction involved a firearm, it was relevant to show that Nesbit used a firearm in this case.

The trial court noted that the conviction would not bolster Nesbit’s credibility but ruled that it

was admissible, because it was relevant and more probative than prejudicial. However, the court

prohibited the State from talking about the facts underlying the conviction.

¶5      There were two employees present during the robbery in this case: the store manager,

Chirayash Patel, and a sales associate, Alexis Enter.

¶6      According to Patel, Nesbit and defendant entered the store. Shortly thereafter, Nesbit

pulled a gun and pointed it at Patel. Patel described the gun as a handgun that looked real. He

was familiar with BB guns, and it did not look like a BB gun. Patel was “scared to death.” Patel

admitted that he was not familiar with Airsoft-brand BB guns and that there could be BB guns

that looked like real guns.

¶7      Enter described the gun as real and said that she was afraid of being shot or killed.

Although she did not own a gun, she knew the difference between a BB gun and a real gun. She

admitted that she did not know what an Airsoft BB gun is and could not tell the difference

between a realistic BB gun and a real gun.

¶8      According to Nesbit, on the day of the robbery, he and defendant picked up a handgun to

use in the robbery. Although someone gave the handgun to defendant, Nesbit carried it into the

store, because he wanted to be in control of the situation. Nesbit described the handgun as a




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2018 IL App (2d) 150608


black .380 semiautomatic. Nesbit, who had handled guns close to 100 times, considered the

handgun to be real.

¶9      While Nesbit and defendant were fleeing the robbery in a car driven by a third person,

Nesbit returned the handgun to defendant. Defendant, in turn, removed the bullets and pulled the

trigger. Defendant told Nesbit that the trigger did not work. Nesbit could not remember what

defendant did with the handgun.

¶ 10    During the ensuing police chase, the car crashed. All three occupants fled on foot, but

Nesbit was captured near the accident scene.

¶ 11    Detective Richard Arsenault of the Naperville Police Department interviewed Nesbit at

the accident scene. According to Detective Arsenault, Nesbit admitted to being involved in the

robbery. Nesbit described the gun as a black .380 semiautomatic handgun. However, Nesbit

added that the gun was fake. When Detective Arsenault asked if he meant fake like an Airsoft,

Nesbit said yes. In subsequent conversations with Detective Arsenault, Nesbit never indicated

that the gun was fake.

¶ 12    Later, Detective Arsenault spoke to defendant at the jail. When Detective Arsenault

asked him who had the gun during the robbery, defendant told him that, before they entered the

store, he had asked Nesbit who had the “ratchet” and Nesbit had answered that Nesbit had it.

According to Detective Arsenault, “ratchet” is a street name for a gun. Detective Arsenault

admitted that he never asked defendant if the gun was an Airsoft or whether Airsoft guns look

real.

¶ 13    Detective Arsenault spoke again to Nesbit while Nesbit was being driven from Chicago

to the Du Page County jail. During the ride, Nesbit agreed to give an audio-recorded statement.




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2018 IL App (2d) 150608


Nesbit told Detective Arsenault that, during the robbery, he used a loaded, black-handled, .380

handgun.

¶ 14   During closing argument, the prosecutor noted that the State must prove that defendant

was accountable for the use of a real gun. The prosecutor argued that, because the robbers were

professionals involved in a big-time operation, the gun was real.

¶ 15   The prosecutor pointed to Nesbit as someone who, because he had handled guns many

times, recognized a real gun. The prosecutor added that, only days before this robbery, Nesbit

had committed the “exact armed robbery at a different phone store with a real gun. And now

he’s going to downgrade and go to a toy gun? Are you kidding me? It’s a joke.” The trial court

sustained defendant’s objection to the prosecutor’s comment.

¶ 16   The prosecutor also relied on the testimony of Patel, Enter, and Detective Arsenault

regarding the gun. In doing so, the prosecutor pointed out that, in light of their testimony, plus

defendant’s admission to Detective Arsenault that he and Nesbit had used a gun, the jury did not

need to believe Nesbit to find that a real gun was involved. The prosecutor acknowledged that

Nesbit first told Detective Arsenault that the gun was an Airsoft, but he noted that Nesbit

testified that it was real. He also pointed to Nesbit’s subsequent statement to Detective Arsenault

that the gun was real.

¶ 17   During rebuttal, the prosecutor noted that the only issue was whether Nesbit used a real

gun. After referring to the testimony of Enter, Patel, Nesbit, and Detective Arsenault that the

gun was real, the prosecutor argued that Nesbit’s initial statement that the gun was fake was not

believable.   The prosecutor added that, four days before the robbery in this case, Nesbit

committed a robbery with a gun. The trial court overruled defendant’s objection.




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2018 IL App (2d) 150608


¶ 18   After the jury found him guilty, defendant filed a motion for a new trial, contending,

among other things, that the admission of Nesbit’s armed-robbery conviction was improper. In

denying the motion for a new trial, the trial court explained that Nesbit’s armed-robbery

conviction was relevant to the sole issue at trial and was more probative than prejudicial.

Defendant, in turn, filed this timely appeal.

¶ 19                                      II. ANALYSIS

¶ 20   On appeal, defendant contends that the trial court erred in admitting Nesbit’s conviction

of armed robbery, because a prior conviction may not be used to bolster a witness’s credibility

and the evidence was not relevant for any proper purpose.

¶ 21    The State responds that the trial court did not abuse its discretion in admitting Nesbit’s

conviction, because (1) it was relevant to show that the gun in this case was real and (2) the

probative value outweighed the prejudicial effect. Alternatively, the State posits that any error

was harmless.

¶ 22   We begin with defendant’s contention that we should review de novo the trial court’s

decision to admit Nesbit’s conviction. We disagree.

¶ 23   Generally, evidentiary rulings are within the discretion of the trial court and will not be

reversed unless the court abused its discretion. People v. Purcell, 364 Ill. App. 3d 283, 293

(2006). Acknowledging that evidentiary rulings are sometimes reviewed de novo, our supreme

court has stated that such an exception to the general rule of deferential review applies only in a

case where a trial court’s exercise of its discretion has been frustrated by an erroneous legal

ruling. Purcell, 364 Ill. App. 3d at 293 (citing People v. Caffey, 205 Ill. 2d 52, 89 (2001)).

¶ 24   Here, the trial court’s evidentiary ruling was purely discretionary. The trial court was not

called upon to make any legal ruling when deciding whether to admit Nesbit’s conviction.



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Defendant’s reliance on People v. Ramos, 396 Ill. App. 3d 869 (2009), is misplaced, as the court

in that case reviewed de novo a trial court’s comments to the jury that arguably impacted the

defendant’s right to a fair trial. Ramos, 396 Ill. App. 3d at 878-79. Here, the trial court ruled on

a purely evidentiary issue. Thus, we apply the abuse-of-discretion standard. 1

¶ 25   Turning to the merits, we initially note that Nesbit’s prior conviction of armed robbery is

not to be analyzed as “other crimes” evidence under Illinois Rule of Evidence 404(b) (eff. Jan. 1,

2011). That is so because Nesbit was not a defendant at trial. See People v. Pikes, 2013 IL

115171, ¶ 20.     Accordingly, its admissibility is to be judged under ordinary principles of

relevance. See Pikes, 2013 IL 115171, ¶ 20.

¶ 26   Evidence is admissible when it is relevant to an issue and its probative value is not

substantially outweighed by its prejudicial effect. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v.

Gonzalez, 142 Ill. 2d 481, 487 (1991). Evidence is relevant if it has any tendency to make the

existence of any fact that is consequential to the determination of an action either more or less

probable than it would be without the evidence. Ill. R. Evid. 401 (eff. Jan. 1, 2011); People v.

Morgan, 197 Ill. 2d 404, 455-56 (2001). As noted, it is within the trial court’s discretion whether

evidence is relevant and admissible, and its decision will not be reversed absent an abuse of

discretion. Morgan, 197 Ill. 2d at 455. A trial court abuses its discretion where its decision is

arbitrary, fanciful, or unreasonable or where no reasonable person would take the court’s view.

Morgan, 197 Ill. 2d at 455.

¶ 27   In this case, because defendant conceded that he committed the robbery, the sole issue for

the jury to decide was whether the gun used by Nesbit was real. Nesbit’s conviction of a recent

       1
           We note that, even were we to review de novo the court’s ruling, we would reach the

same result.



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armed robbery with a firearm was relevant to that issue. The jury could reasonably infer that,

because Nesbit recently had used a firearm in the Cook County case, he had used a firearm in

this case. See People v. Johnson, 264 Ill. App. 3d 1000, 1009 (1994). Thus, the armed-robbery

conviction was relevant to that issue.

¶ 28   Having concluded that the conviction was relevant, we next decide whether its probative

value was substantially outweighed by its prejudicial effect. See Ill. R. Evid. 403 (eff. Jan. 1,

2011). It was not.

¶ 29   The armed-robbery conviction was not used to bolster Nesbit’s credibility. Indeed, in

ruling on the motion in limine, the trial court noted that the conviction would not bolster Nesbit’s

credibility. Moreover, in closing argument, the prosecutor referred to the conviction solely as

proof that the gun was real. The prosecutor never contended that the conviction made Nesbit

more credible. Rather, the prosecutor told the jury that it could find that the gun was real without

believing Nesbit. Thus, the use of the armed-robbery conviction was limited to the issue of

whether the gun was real.

¶ 30   Further, to the extent that the prosecutor referred to the conviction during closing

argument, he did so only briefly. Indeed, after the prosecutor argued that, because Nesbit

recently had used a real gun, he was likely to have done so in this case, the trial court sustained

defendant’s objection. The prosecutor focused instead on the evidence from Enter, Patel, and

Detective Arsenault that the gun was real. Thus, the limited use of the conviction significantly

reduced any prejudicial impact.

¶ 31   Because the State did not rely on the conviction to bolster Nesbit’s credibility, and relied

primarily on the other evidence to prove that the gun was real, the prejudicial impact of the

conviction did not substantially outweigh its probative value. Thus, the trial court did not abuse



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its discretion in admitting the armed-robbery conviction to show that the gun used in this case

was real.

¶ 32   Although defendant relies on People v. Sullivan, 72 Ill. 2d 36 (1978), and People v.

Romero, 66 Ill. 2d 325 (1977), neither case supports his position. Sullivan is distinguishable, as

there the issue was whether the defendant was denied a fair and impartial trial when the

prosecutor urged the jury to find the defendant guilty because his accomplices had pled guilty to

the same offense. Sullivan, 72 Ill. 2d at 43. Here, the State did not rely on Nesbit’s guilty plea to

persuade the jury to find defendant guilty. Romero is also distinguishable, as the issue there was

whether evidence of the defendants’ other criminal acts was admissible to enhance the credibility

of a prosecution witness. Romero, 66 Ill. 2d at 329. In this case, as noted, the State did not use

the conviction to bolster Nesbit’s credibility.     Thus, neither Sullivan nor Romero supports

defendant.

¶ 33   Even if the trial court abused its discretion in admitting Nesbit’s armed-robbery

conviction, any error was harmless. To establish that an error was harmless, the State must

prove beyond a reasonable doubt that the verdict would have been the same absent the error.

People v. Montano, 2017 IL App (2d) 140326, ¶ 124. When deciding whether an error was

harmless, a reviewing court may: (1) focus on the error to determine whether it might have

contributed to the conviction, (2) examine the properly admitted evidence to determine whether

it overwhelmingly supports the conviction, or (3) determine whether the improperly admitted

evidence is merely cumulative or duplicates properly admitted evidence. Montano, 2017 IL App

(2d) 140326, ¶ 124.




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¶ 34      Here, the evidence other than Nesbit’s conviction overwhelmingly supported the jury’s

verdict. Most notably, defendant admitted to Detective Arsenault that a “ratchet,” or gun, was

used. Thus, defendant essentially admitted that the gun was real.

¶ 35      Further, Nesbit, who was very familiar with guns, testified that he used a real gun.

Indeed, he described the gun in detail. He added that defendant emptied bullets from the gun

during the getaway. Detective Arsenault testified that, although Nesbit initially told him that the

gun was fake, Nesbit thereafter referred to the gun as real.

¶ 36      Finally, both Enter and Patel testified that the gun was real. Indeed, both witnesses

testified that they were frightened because they thought that the gun was real. Both witnesses

knew the difference between a BB gun and a real gun. Given that Nesbit described the gun as a

.380, it was not likely that either witness confused it with a BB gun.

¶ 37      Given the overwhelming evidence that the gun was real, any error in admitting Nesbit’s

armed-robbery conviction was harmless.

¶ 38                                    III. CONCLUSION

¶ 39      For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for

this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178

(1978).

¶ 40      Affirmed.




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