                                   2015 IL App (1st) 122000
                                                                                  Sixth Division
                                                                 Opinion filed: January 23, 2015
                                 No. 1-12-2000
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                                   FIRST DISTRICT
______________________________________________________________________________
                                            ) Appeal from the Circuit Court
THE PEOPLE OF THE STATE OF ILLINOIS, ) of Cook County.
                                            )
      Plaintiff-Appellee,                   )
                                            )
v.                                          ) No. 10-CR-19970
                                            )
DARRYL McGEE,                               ) Honorable
                                            ) Lauren Gottainer Edidin,
      Defendant-Appellant.                  ) Judge, Presiding.
______________________________________________________________________________
      PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
      Justices Lampkin and Rochford concurred in the judgment and opinion.

                                           OPINION

¶1     After a jury trial, the defendant, Darryl McGee, was convicted of stalking (720 ILCS

5/12-7.3(a)(1) (West 2010)) a CTA employee and sentenced to a term of 30 months in prison.

On appeal, he contends his conviction should be reversed where the State failed to prove his guilt

beyond a reasonable doubt. Alternatively, he argues that he is entitled to a new trial where the

circuit court erred in admitting highly prejudicial evidence of other crimes and failing to comply

with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the reasons that follow, we

reverse and remand the cause for a new trial.

¶2     In November 2010, the defendant was indicted on two counts of stalking. Count I

alleged that, on October 4, 2010, and continuing through October 8, 2010, the defendant

knowingly engaged in a course of conduct directed at Vicki Glanz, "to wit: repeatedly arrived at
2015 IL App (1st) 122000

[her] place of employment yelling obscenities, and he knew or should have known" that his

conduct would cause a reasonable person to fear for her safety. 720 ILCS 5/12-7.3(a)(1) (West

2010). Count II alleged the same conduct in violation of section 7.3(a)(2) of the Criminal Code

of 1961 (Code) (720 ILCS 5/12-7.3(a)(2) (West 2010) (knew or should have known conduct

would cause a reasonable person to suffer other emotional distress)).

¶3      On August 2, 2011, the State filed a motion in limine seeking to admit evidence of other

crimes by the defendant. Specifically, the State sought to admit evidence of an altercation

between the defendant and Vicki's husband, Christopher Glanz, which occurred on October 8,

2010.    According to the State's motion, Christopher confronted the defendant about his

harassment of Vicki and a physical altercation ensued which resulted in the defendant stabbing

Christopher in his arm with a box cutter and the defendant requiring hospitalization for his

injuries. The State asserted that, while Christopher declined to press charges for his injury,

evidence of the altercation was relevant to prove the defendant's violent intent toward Vicki. The

State further argued that the altercation corroborated Vicki's concerns for her safety and showed

the defendant's "continuing narrative which began with the harassment and threats to Vicki

Glanz and ended with the assault on her husband." The defendant objected to the admission of

the evidence, arguing that Christopher was the aggressor in the altercation and that the

altercation was unrelated to his alleged conduct directed at Vicki.

¶4      The circuit court granted the State's motion, finding that the indictment covered October

8, 2010, which was the date of the altercation. The court also stated that whether the altercation

constituted part of the course of stalking conduct was a matter for the trier-of-fact.

¶5      On June 13, 2012, the defendant's trial commenced with a different presiding judge than

the judge that granted the State's previous motion in limine. Although the defendant renewed his

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objection to the other-crimes evidence, the circuit court allowed the previous judge's ruling to

stand.

¶6       Vicki, a CTA combined rail operator, testified that, in October 2010, she was assigned to

work at the Evanston Central Street Purple Line station, where she had been working for several

years. On days she did not operate a train, she worked in the station's customer service kiosk,

which was located near the turnstiles where customers entered to board the train or exit the

station. Vicki stated that customers often approached the kiosk to ask her questions and that she

was the only CTA employee working at that location to assist customers.

¶7       According to Vicki, around 3 p.m. on October 4, 2010, the defendant entered the station

and stood near the turnstile. Because his train pass was not working, the defendant asked Vicki

for assistance. She testified that she used her access card to allow the defendant through the

turnstile because his card was damaged. After the defendant walked through the turnstile, Vicki

returned to the other customers that she had been speaking with. However, she noticed that the

defendant never walked upstairs to the train platform, but remained standing in her vicinity.

Vicki asked if he needed any other assistance, and the defendant asked her where the "201 bus"

was located. She told him that bus was outside, pointing toward the doors that open to Central

Street. Again, the defendant did not move, but instead asked Vicki where he could find the 201

bus to which she gave him the same answer. When the defendant asked her the same question a

third time, another customer answered "[d]ude, it's right outside. You have to go outside to get

the bus." The train then approached and the crowd near Vicki ran upstairs to board it, but the

defendant did not move. At that point, Vicki noticed that another customer needed assistance, so

she walked to that person near the turnstile. She stated that the defendant walked behind her and

stood "very close" to her. She asked him whether he needed anything else, and he repeated the

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same question about the 201 bus. Vicki testified that she told him that she had answered that

question and that there was nothing more for them to discuss. She turned and walked toward her

kiosk, but the defendant started "cursing and calling [her] names," such as "nigga bitch." Vicki

entered her kiosk and called the CTA control center.

¶8     According to Vicki, the controller heard the defendant yelling in the background and

asked her whether she was okay. She told the controller what happened and asked for the police

to be called. Vicki testified that the defendant was "cursing, [and] banging on the windows" of

her kiosk while she was on the phone. After she hung up the phone, the defendant ran upstairs

and then returned, continuing to call her names and stating that he would "get her schedule,"

"find her," and that he was "going to get [her]." The defendant then went back upstairs, and the

police arrived. Vicki told the officer that the defendant went upstairs and the officer proceeded

to look for him. When the officer returned alone, Vicki asked about the defendant, and the

officer told her that she allowed him to board the train. Vicki asked the officer why she allowed

that, and the officer stated that he did not do anything wrong. At that point, Vicki informed the

officer that the defendant had threatened her. The officer told Vicki that she did not have that

information beforehand and told her to call the police if the defendant returned.

¶9     No surveillance video from October 4, 2010, was admitted into evidence. However,

Evanston Police Officer Conley testified that she responded to the October 4th dispatch, but she

was not informed of any specific threats made to an individual. When she arrived at the scene,

Vicki immediately stated that the defendant "went upstairs, go get him," but she did not mention

any physical threats. Officer Conley located the defendant, told him to leave the CTA employee

alone, and allowed him to get on the train. When Officer Conley told Vicki that she let the

defendant board the train, Vicki informed her that he had threatened her and said that he was

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2015 IL App (1st) 122000

"going to kick her ass or beat her ass." Officer Conley advised Vicki to call the police if the

defendant returned.

¶ 10    Vicki testified that around 3 p.m. on October 8, 2010, she was sweeping outside her kiosk

when the defendant appeared "in [her] face," asking where he could find the 201 bus. Vicki

turned around, entered her kiosk, and called the CTA control center. The defendant "started

banging on the windows and calling [her] names again, calling [her] bitch." Turning away from

the defendant, Vicki began to cry and asked the controller to remain on the phone with her until

the police arrived. While waiting for the police, Vicki used her cell phone to call her husband

and left him a message; she also called an Evanston police officer whom she knew personally.

According to Vicki, it seemed like the incident went on for "maybe 20 minutes." The controller,

who was watching through the security cameras, told Vicki that the defendant had left. But he

returned shortly thereafter and continued banging on her window and calling her "a bitch." The

defendant left again, and the police arrived minutes later.     Vicki told the officer that the

defendant went outside. Shortly thereafter, the officer returned without the defendant and told

Vicki to call the police if he returned.

¶ 11    The surveillance video of October 8 was admitted into evidence and published to the

jury. The video does not contain any audio. Vicki testified as the video played, confirming the

accuracy of the depiction of the incident around 3 p.m. The video depicts Vicki inside her kiosk

and the defendant standing outside of it, speaking to her through the glass. The defendant, who

is carrying a backpack, then repeatedly knocks on the window with his knuckles for a few

minutes, walks away, then returns, again knocking on the window until he finally leaves the

station a few minutes later. An officer arrives, speaks to Vicki, and leaves the scene. The

incident does not exceed ten minutes in duration.

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¶ 12   Vicki further testified that, around 4:30 p.m. on October 8, her husband, Christopher,

arrived at the station. Around 5 p.m., the defendant walked into the station. When Vicki saw

him, she "was afraid" and "went silent." Christopher asked her if that was the man harassing her,

and Vicki told him that it was. She went into her kiosk to call the CTA control center, and

Christopher confronted the defendant. Vicki testified that she did not hear their conversation, but

she heard that their voices were loud and she saw that their faces were close to one another. The

two men then began fist-fighting. She stated that both Christopher and the defendant were

throwing punches, and she saw that Christopher was bleeding. However, Vicki testified that she

did not see a weapon.

¶ 13   Vicki testified that she reported both the October 4th and October 8th occurrences to her

manager and documented them in "the daily reports." She stated that, after the October 4th

occurrence, she felt "scared" and "afraid" of the possibility that the defendant would return to the

station while she was working. When he did return on October 8, she testified that she felt "very

scared," "helpless," "embarrassed," and "weak." She stated again that she "was afraid of the

defendant," and that she feared that he would harm her.

¶ 14   On cross-examination, Vicki clarified that, on October 4, the defendant "banged" on the

kiosk window with his "fists," but on October 8, he "banged" on the window with his "knuckles."

When asked whether the defendant said that he was "going to hurt" her on October 4, Vicki

answered that she "should have said it before, but [the defendant] said he was going to kick my

ass." She explained that she did not testify to that fact on her direct examination because she

"was just shaken up." Further on cross-examination, Vicki admitted that when the defendant

returned on October 8, he did not "kick [her] ass," touch her, or pull a weapon on her, and when



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2015 IL App (1st) 122000

he returned later that day, he did not speak to her or walk toward her kiosk. Rather, she admitted

that Christopher initiated contact with the defendant.

¶ 15   Christopher testified that, on October 8, 2010, Vicki left a voicemail message on his cell

phone around 3 p.m., prompting him to drive to her workplace. Around 5 p.m., the defendant

walked into the station and Vicki "turned pale," telling Christopher that he was the passenger that

had harassed her that day. Christopher testified that he immediately confronted the defendant,

yelling at him to leave the station and to leave Vicki alone. He said that the defendant responded

by stating that he was just trying to catch the train and that he had only asked Vicki where the

201 bus could be found. Christopher stated that he continued "cussing and hollering" at the

defendant, who then responded by parroting his words. According to Christopher, their faces

were very close and, when their noses touched, the defendant tried to bite him. Within that

moment, Christopher shoved the defendant, and the defendant cut Christopher's arm.              He

testified that, after he was cut, he punched the defendant in the face repeatedly and continued

punching him and kicking him while he was on the ground. After the fight, Christopher used his

shirt to wrap his arm and began to walk down the block to the hospital. However, he returned to

the station when he saw the defendant standing at the bus stop because he wanted to "protect his

wife." Christopher identified a photograph of his wound, which required over 100 stitches, and

he displayed the scar on his arm for the jury to view. In addition, Christopher identified

photographs of the defendant's backpack and the box cutter later retrieved from the backpack that

day.

¶ 16   Defense counsel thoroughly cross-examined Christopher on the fact that he initiated the

fight with the defendant. On redirect examination, the State asked Christopher whether he

declined to press charges against the defendant for aggravated battery, which he responded that

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he did. Defense counsel objected to the question and moved for a mistrial, arguing that the fact

no additional charges were filed in connection to the fight was beyond the scope of his cross-

examination and highly prejudicial because the jury could speculate as to whether there might

have been an additional charge filed against the defendant.        The circuit court denied the

defendant's motion for a mistrial and overruled the objection, finding that the other-crimes

evidence motion had been granted and the State mentioned that Christopher declined to press

charges in its opening statement, with no objection. Indeed, the assistant State's attorney stated

during her opening argument that Christopher "told the police, 'Look, I got my justice of the

street, you don't have to charge him with anything.' "

¶ 17   The October 8 surveillance video depicting the altercation between the defendant and

Christopher was published to the jury. In the video, the defendant, who is carrying a backpack,

walks into the station and attempts to use his CTA card to pass through the turnstile while

Christopher, who is standing near the turnstile, speaks to Vicki through the window of her kiosk.

As the defendant's card fails to let him through the turnstile, Christopher confronts him.

Although there is no audio, the men appear to be yelling at each other, and they are standing very

close together. When their faces are nearly touching, the defendant makes a motion towards

Christopher's face with his head, and Christopher shoves the defendant backward. The defendant

then reaches into his pocket and pulls out a small item with his hand. The two men continue

yelling at each other, and Vicki exits her kiosk for a moment to watch the fight. Christopher

repeatedly punches the defendant until he falls to the ground. He then repeatedly kicks the

defendant. As Christopher walks away from the defendant, he wraps his arm with his shirt, and

the defendant attempts to stand up, but falls down in the background.



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¶ 18   Evanston Police Officer Nicholas Demos testified that he responded to the initial October

8th dispatch in which Vicki told him that she was being harassed by someone and that the

individual was "pounding on the glass of her booth." Officer Demos searched the area but did

not find anyone fitting the defendant's description. Later that day, he returned to the station to

respond to the altercation between the defendant and Christopher. Upon arriving at the station,

Officer Demos found the defendant's backpack in the lobby and retrieved a box cutter from the

inside of it. He identified the photos of the backpack and box cutter.

¶ 19   The defendant testified in his defense, stating that, on October 4, 2010, he was traveling

to a job interview with the Vector Company in Skokie. He was not familiar with the CTA

schedule, so when he arrived at the station, he approached Vicki to ask about the 201 bus

schedule. According to the defendant, Vicki was "very ambiguous and very rude and very bitter

and inattentive." She told him the bus was "over that way." The defendant walked around for a

minute, but he was confused so he returned and knocked on the kiosk window. He denied that

he "banged" on the window. Again, Vicki told him vaguely that the bus was "over there." The

defendant testified that he eventually left, returned, and then again asked Vicki about the bus.

He stated that she remained rude and ambiguous, so he left and walked up to the train platform at

which time Officer Conley approached him. The defendant denied admitting to Officer Conley

that he called Vicki a "bitch." He also denied ever threatening Vicki or stating that he would

"kick her ass." The State called Officer Conley in rebuttal, and she testified that the defendant

admitted to her that he called Vicki a "bitch." The defendant testified that, in the evening, he

reported Vicki's unprofessional behavior by calling the CTA's 888 phone number.

¶ 20   The defendant testified that, on October 8, 2010, he returned to the CTA station to travel

to his interview at the Vector Company, which had been rescheduled from October 4th. He

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asked Vicki about the 201 bus, hoping she would be more helpful, but she again responded

rudely and ambiguously. He left for his interview. He denied that he called Vicki names or

banged on her window. When he returned to the station, his CTA card did not work because it

was damaged.      The defendant testified that, as he began to look up from the turnstile,

Christopher confronted him by "yelling and cursing" at him. According to the defendant, he told

Christopher that he was simply trying to catch the train, but Christopher pushed him backward

and attacked him. The defendant stated that Christopher punched him multiple times and kicked

him several times while he was lying on the ground. As a result of the fight, the defendant was

hospitalized for internal head injuries and cracked ribs.

¶ 21   On cross-examination, the defendant admitted he arrived for his interview late on

October 4 and that the company rescheduled it for October 8. However, he denied that he was

angry about having been late. The defendant further denied that he had a box cutter in his

possession on October 8, that he used it to cut Christopher, or that it was found in his backpack.

However, he identified the backpack in the photograph as the one that he had been carrying that

day.

¶ 22   The jury found the defendant guilty of both stalking counts, and the circuit court denied

the defendant's motion for a new trial. After a hearing, the court sentenced the defendant to 30

months' imprisonment on one count of stalking, finding the second count merged pursuant to the

one-act, one-crime rule. This appeal followed.

¶ 23   We first address the defendant's argument that the circuit court erred in admitting

evidence of his altercation with Christopher. At the outset, we reject the State's argument that

the defendant forfeited this evidentiary issue because he failed to preserve it in a posttrial motion.

The record demonstrates that the defendant objected to the State's motion in limine to introduce

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the evidence, renewed the objection before the new trial judge, and raised the issue sufficiently

in his motion for a new trial. Thus, we find that the defendant properly preserved the issue for

review.

¶ 24      The defendant contends that the evidence of his altercation with Christopher was not part

of his alleged course of stalking conduct and was not relevant to prove his intent toward Vicki.

Even if the evidence was relevant to the stalking offense, the defendant argues that the court

erred in allowing the altercation to become the focal point of the trial. Accordingly, he maintains

that the introduction of this highly prejudicial evidence requires reversal. The State counters that

the evidence of the defendant's altercation with Christopher, including his indigent responses to

Christopher's requests that he leave Vicki alone and his possession of a "deadly weapon,"

showed that his "intent throughout the entire course of conduct" was not merely his lack of

understanding the public transit system schedule. We agree with the defendant and, for the

reasons that follow, we reverse and remand for a new trial.

¶ 25      Evidence of a crime or other bad acts for which a defendant is not on trial is inadmissible

if relevant merely to establish the defendant's propensity to commit crime. People v. Placek, 184

Ill. 2d 370, 385 (1998). "Such other-crimes evidence is objectionable because a jury, upon

hearing this evidence, might convict the defendant merely because it feels that the defendant is a

bad person who deserves punishment." Id. Exceptions exist, of course, to allow the admission

of other-crimes evidence when it is relevant to establish any material question other than the

defendant's propensity to commit a crime. Id. For instance, our courts have deemed other-

crimes evidence admissible if relevant to demonstrate knowledge, intent, motive, design, plan or

identification. People v. Lindgren, 79 Ill. 2d 129, 137 (1980). Other-crimes evidence has also

been deemed admissible when the evidence: was relevant in placing a defendant in proximity to

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2015 IL App (1st) 122000

the time and place of the presently charged offense; tended to prove a fact in issue; rebutted an

alibi defense; or demonstrated a consciousness of guilt. People v. Diaz, 78 Ill. App. 3d 277, 279-

80 (1979). However, even where other-crimes evidence is relevant for a permissible purpose,

the circuit court must weigh the prejudicial effect of admitting the other-crimes evidence against

its probative value. Placek, 184 Ill. 2d at 385. The court should exclude evidence of other

crimes where its prejudicial effect substantially outweighs its probative value.        Id.   The

admissibility of other-crimes evidence rests within the sound discretion of the circuit court, and

we will not overturn its decision absent a clear abuse of that discretion. Id.

¶ 26   In Lindgren, the supreme court affirmed the appellate court's decision reversing the

defendant's armed robbery and murder convictions and remanding for a new trial because the

trial court erroneously admitted highly prejudicial evidence of a subsequent arson crime which

was unrelated to the charged crime. Lindgren, 79 Ill. 2d at 132. The defendant was charged with

the armed robbery and murder of Arthur Lewis which took place around midnight on April 17-

18, 1977. Id. at 132-33. At trial, witness Ina Lewis testified that, about an hour after the

defendant returned from the murder scene, he drove her to his ex-wife's home and set the home

on fire. Id. at 134-35. Lewis testified that the defendant had stated that he warned his ex-wife

earlier that day that he would burn the home down if she was not home when he returned. Id.

After they left the ex-wife's home, the car that they were traveling in got stuck in a ditch. Id.

The next morning, while waiting near the incapacitated vehicle, both Lewis and the defendant

were arrested. Id. at 135. Just before the arrest, the defendant asked Lewis to "ditch" his gun

and wallet, which she did. Id.

¶ 27   The defendant objected to the admission of the arson evidence, arguing that it was

unrelated to his charges for which he was on trial. Id. The State contended that the evidence

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was relevant to demonstrate a consciousness of guilt, because under its theory, the defendant

stole the gun from his ex-wife's home earlier in the day and burned the home down after using

the gun in the murder in order to conceal the fact the gun was missing. Id. at 137-38. The

supreme court rejected the State's "strained interpretation of events," noting that: metal does not

burn; Lewis testified that the defendant did not ask her to conceal the weapon until after the

arson; and the defendant provided a different reason for burning his ex-wife's home down. Id.

¶ 28   The supreme court also rejected the State's argument that the arson evidence was

admissible because it established his presence near the scene of the crime. Id. at 138-39. The

court stated that "[g]enerally, time and place proximity, without more, is an insufficient basis for

permitting other-crimes evidence." Id. at 139. The court noted that proximity plus additional

reasons, such as relevance to the defendant's knowledge, common design or scheme, or identity,

may support the admissibility of other-crimes evidence, but that none of these reasons were

present in its case. Id. The supreme court explained that the arson evidence added nothing to the

State's case as Lewis already testified to the defendant's presence at the robbery and murder

scene, establishing time and place proximity. Id. For similar reasons, the court rejected the

State's contention that the arson evidence was admissible as part of a "continuing narrative of

[the] crime." Id. at 139-40. The supreme court found that the arson was a "distinct crime

undertaken for different reasons at a different place at a separate time." Id. at 140.

¶ 29   While the supreme court acknowledged that the admission of prejudicial evidence may be

deemed harmless, the "extensive discussion of the collateral crime of arson" was not harmless.

Id. at 141. The court stated that the arson evidence "could have influenced the jury to convict

him only out of a belief that he deserves punishment." Id. The court acknowledged that its

opinion was not a finding of the defendant's innocence and that an uncontaminated jury could

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find Lewis's testimony regarding the robbery and murder credible. Id. at 142. However, it is the

jury's function as the fact-finder to determine witness credibility and resolve conflicts in the

testimony. Id. Thus, the court remanded the cause for a new trial. Id.

¶ 30   We find the facts of Lindgren comparable to the facts of the case at bar. Like in

Lindgren, we do not accept the State's contention that the defendant's altercation with

Christopher constituted a continuing narrative of his alleged stalking offense toward Vicki as the

altercation was a "distinct" event "undertaken for different reasons" at a different time. See

Lindgren, 79 Ill. 2d at 140. Other-crimes evidence is admissible if it is part of a continuing

narrative of the event giving rise to the offense or is intertwined with the offense charged.

People v. Abernathy, 402 Ill. App. 3d 736, 751 (2010). Stated otherwise, when facts concerning

the uncharged criminal conduct are part of a continuing narrative of the charged criminal

conduct, they do not concern separate, distinct, and unconnected crimes. Id. (finding evidence of

fire at the home where the charged domestic battery offense occurred minutes before was part of

continuing narrative surrounding the domestic violence incident).

¶ 31   In this case, the defendant allegedly stabbed Christopher for a distinct reason and after

the time the charged offense was completed. The defendant was charged with stalking Vicki

under section 12-7.3(a)(1) and (a)(2) of the Code by "repeatedly arriv[ing] at [her] place of

employment yelling obscenities" when he knew or should have known that his conduct would

cause a reasonable person to fear for her safety or suffer other emotional distress.           The

altercation between the defendant and Christopher occurred approximately two hours after the

defendant's October 8th interaction with Vicki and did not involve any contact with Vicki.

Rather, Vicki, Christopher and the defendant all testified that, when the defendant returned to the

station on October 8, he said nothing to Vicki and did not approach her; rather, he walked to the

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turnstile at which time Christopher confronted and attacked him. Christopher admitted that he

initiated contact with the defendant and admitted that the defendant never approached Vicki at

that time, but had stated that he was only trying to ride the train. The surveillance video

substantiates the witnesses' testimony in this regard. Thus, we cannot find that the altercation

constituted a continuing narrative of the defendant's alleged stalking conduct directed at Vicki.

¶ 32   Similarly, we reject the State's argument that the evidence proves the defendant's intent to

harm Vicki by showing that he arrived at her workplace with a "deadly weapon." Like the court

in Lindgren determined that the arson crime was not necessary to establish the defendant's time

and proximity to the murder scene, evidence of the altercation did not need to be admitted in this

case in order to bring in evidence that the box cutter was retrieved from his backpack later in the

day when he was arrested. See People v. Fauntleroy, 224 Ill. App. 3d 140, 149 (1991) (reference

to evidence related to the defendant's arrest on an outstanding warrant was deemed admissible as

part of narrative testimony regarding circumstances surrounding the arrest for the charged

offense). Thus, even though evidence of the box cutter may have been admissible, it was not

necessary to discuss the altercation in order to admit it.

¶ 33   We further find that no other exceptions to the other-crimes rule apply here. Contrary to

the State's argument that the altercation proves the defendant's intent to harm Vicki, we cannot

conclude that his mere presence at the train station the second time on October 8th demonstrated

his intent to stalk Vicki.   The version of the stalking statute under which the defendant was

charged provides that:

               "(a) A person commits stalking when he or she knowingly engages in a course of

       conduct directed at a specific person, and he or she knows or should know that this

       course of conduct would cause a reasonable person to:

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                       (1) fear for his or her safety or the safety of a third person; or

                       (2) suffer other emotional distress." 720 ILCS 5/12-7.3(a) (West 2010).

Section 7.3(c) of the Code (720 ILCS 5/12-7.3(c) (West 2010) also defines several relevant

terms, including:

               "(1) 'Course of conduct' means 2 or more acts, including but not limited to acts in

       which a defendant directly, indirectly or through third parties, by any action, method,

       device, or means follows, monitors, observes, surveils, threatens, or communicates to or

       about, a person, engages in other non-consensual contact, or interferes with or damages a

       person's property or pet.      A course of conduct may include contact via electronic

       communications."

                                                 ***

               (6) 'Non-consensual contact' means any contact with the victim that is initiated or

       continued without the victim's consent, including but not limited to being in the physical

       presence of the victim; appearing within the sight of the victim; approaching or

       confronting the victim in a public place or on private property; appearing at the

       workplace or residence of the victim; entering onto or remaining on property owned,

       leased, or occupied by the victim; or placing an object on, or delivering an object to,

       property owned, leased, or occupied by the victim." 720 ILCS 5/12-7.3(c) (West 2010).

¶ 34   We cannot conclude that the defendant's physical presence within Vicki's sight at the

train station constituted "non-consensual contact" under the Code when there is no evidence that

he knew she would be present at the time he returned from his interview on October 8th.

Moreover, the altercation did not tend to prove a fact in issue, such as identity or motive, of the

stalking offense nor did it rebut an alibi or demonstrate a consciousness of guilt as to his earlier

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conduct with Vicki. See Diaz, 78 Ill. App. 3d at 279-80 (stating exceptions to rule barring other-

crimes evidence include when evidence is relevant to establish time and place proximity, prove a

fact in issue, rebut an alibi or demonstrate a consciousness of guilt). The defendant's identity and

presence was undisputed; the nature of his contact with Vicki on October 4th and October 8th

around 3 p.m. was the only disputed fact.

¶ 35   The State's reliance on People v. Ranstrom, 304 Ill. App. 3d 664 (1999) is also

unpersuasive. In Ranstrom, the court determined that evidence of the defendant's numerous

violations of orders of protection obtained by his ex-girlfriend was relevant in proving the State's

theory that he was motivated by his obsession with the woman when he attacked her new

boyfriend. Id. at 675. Unlike in Ranstrom, the defendant's stabbing of Christopher does not help

establish whether his earlier conduct toward Vicki violated the stalking statute. Further, while

the circuit court was correct that the indictment included the date of the altercation, it does not

follow that the evidence is per se admissible. Thus, based on the record before us, we find that

the circuit court abused its discretion when it granted the State's motion to admit the evidence of

the altercation between the defendant and Christopher.

¶ 36   As the Lindgren court observed, improper admission of other-crimes evidence does not

automatically require reversal if the error is deemed harmless. However, like in Lindgren, we

find that the admission of the other-crimes evidence in this case was not harmless where its use

was so pervasive during the defendant's trial that it nearly became unclear as to whether he was

being tried for stalking Vicki or stabbing Christopher.

¶ 37   Evidence of the altercation did not come in merely through the questioning of a single

witness like the arson evidence did in Lindgren. Instead, testimony about the altercation was

adduced from Vicki, Christopher, Officer Demos, and the defendant. Additionally, the State

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specifically argued that Christopher did not press charges against the defendant for the stabbing,

insinuating that the defendant should have or could have been charged with a crime related to the

altercation.   The jury was also shown the surveillance video depicting the altercation and

photographs of the box cutter, the defendant's backpack, and Christopher's wound, and

Christopher displayed his scar for the jury to view.

¶ 38    The evidence adduced at the defendant's trial went far beyond the reasons the State

claimed it wanted to use the evidence; that is, to establish that the defendant continually stalked

Vicki or possessed a weapon at her place of employment. We see no other reason for the

evidence of the altercation with Christopher to be admitted other than to prove the defendant was

a bad person deserving of punishment. Given the highly prejudicial nature of other-crimes

evidence and the manner in which the State used the evidence in this case, we cannot find that

the evidence did not contribute to the jury's verdict. We caution, as the court did in Lindgren,

that our decision does not hold that the defendant is innocent. Rather, the stalking case boiled

down to the credibility of the witnesses and credibility determinations are within the province of

the jury, not the reviewing court. Lindgren, 79 Ill. 2d at 142. A jury may conclude, following a

trial without the admission of the highly prejudicial evidence, that the State's witnesses are

credible, but that is not our decision to make.

¶ 39    Although our decision effectively disposes of the case, we must also consider the

defendant's insufficiency-of-the-evidence argument or else risk subjecting him to double

jeopardy at a new trial upon remand. People v. Bovio, 118 Ill. App. 3d 836, 843 (1983). A

judgment of conviction will not be reversed unless the evidence is so unsatisfactory or

improbable that a reasonable doubt as to the guilt of the defendant remains. Id. As we stated

earlier, the State's case rested on the credibility of its witnesses along with the weight to be

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placed upon the surveillance video of the defendant's October 8 interaction with Vicki. Vicki

testified to the events of October 4 and October 8, 2010, stating that the defendant verbally

threatened her, yelled obscenities at her, and menacingly pounded on the glass window of her

kiosk. The October 8 surveillance video recorded her interaction with the defendant, and Officer

Conley testified that the defendant admitted calling Vicki a "bitch" on October 4.        If an

uncontaminated jury finds the State's witnesses to be credible, the evidence would be sufficient

to prove the defendant guilty of stalking beyond a reasonable doubt. Id. ("It is within the

province of the jury to determine the credibility of witnesses").

¶ 40      Having concluded that the erroneous admission of other-crimes evidence warrants a new

trial in this case, we need not address the defendant's remaining argument pertaining to Rule

431(b).

¶ 41      Based on the foregoing reasons, we reverse the judgment of the circuit court of Cook

County and remand the cause for a new trial.

¶ 42      Reversed and remanded.




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